Redlin v. Wagner

Maesiiall, J. This appeal presents two questions which may be briefly stated and answered. Upon failure to give security for costs in compliance with [449] an order in justice’s court to do-so under sec. 3782, Stats., may the justice enter a judgment of dismissal which may be appealed from, affording the circuit court jurisdiction of the action? That is ruled in the affirmative by Steinam v. Schulte, 83 Wis. 567, 53 N. W. 844; Dorothy v. Richmond, 107 Wis. 652, 83 N. W. 768; and Simanek v. Nemetz, 120 Wis. 42, 97 N. W. 508. In such a case the appellate tribunal may require security for costs to be given. Is failure to have a “next friend” appointed for an infant plaintiff under sec. .3613 and to institute-his action in the name of such friend a jurisdictional defect ? That is ruled in the negative by Hafern v. Davis, 10 Wis. 501; Sabine v. Fisher, 37 Wis. 376; Hepp v. Huefner, 61 Wis. 148, 20 N. W. 923; and Webber v. Ward, 94 Wis. 605, 69 N. W. 349. True, the section referred to is in mandatory language, but it must be read in connection with sec. 2829 with reference to nonmateriality of matters “which shall not affect the substantial rights of the adverse party.” One of the earliest of our decisions so declared. Hafern v. Davis, supra. The court there gave the deserved significance to such section, which was somewhat lost sight of for a time. It was said, in spealdng of the matter: “All objections not going to the merits of the action or defense seem to be swept out of existence.” The result is that the trial court decided right on the first question, but wrong on the second. By the Cowt. — Order reversed, and cause remanded for further proceedings according to law.