Todorovic v. Hirschberg

Owen, J. Plaintiff recovered a judgment in the civil court of Milwaukee county. Defendant served a notice of appeal therefrom to the circuit court for Milwaukee county, [15] but failed to pay to the clerk of the civil court certain fees necessary to be paid in order to perfect the appeal, by virtue of ch. 320, Laws 1913, and the clerk of the civil court never transmitted the record to the circuit court. Plaintiff made a motion to dismiss the appeal in the circuit court, which motion was granted without costs. Defendant brings this appeal from the order of the circuit court dismissing the appeal from the civil court, claiming that the circuit court had no jurisdiction of the case and was without power to dismiss the appeal. It is clear that the circuit court had no jurisdiction of the case, for the reason that the appeal from the civil court had not been perfected by the payment of the fees required by law. In this respect the case is- unlike Bruins v. Downey, 45 Wis. 496; Allard v. Smith, 97 Wis. 534, 73 N. W. 50, and S. C. 120 Wis. 22, 97 N. W. 510. In those cases all requisite fees had been paid and the appeal perfected, but the justice of the peace had failed to return the record to the circuit court. It was intimated in those cases that under such circumstances the circuit court had power to dismiss the appeal. It is manifest that an appellate court does not acquire jurisdiction of a case until the jurisdiction of the lower court is superseded. The lower court retains jurisdiction of the case until everything necessary to perfect the appeal has been done. In the instant case the requisite fees not having been paid to the clerk of the civil court, that court did not lose jurisdiction of, the -case and the circuit court acquired none. There was therefore no appeal pending in the circuit court upon which its order of dismissal could operate, and the order was a nullity and must be reversed. We are at a loss,, however, to understand the motive prompting this appeal. If, as appellant here contends, the circuit court acquired no jurisdiction of. the case, the order dismissing the appeal resulted in no injury to him. It is stated in the brief of appellant’s counsel that the appeal was [16] dismissed with costs. Such, however, is not the case, and the appellant has not the excuse of relieving himself from, ordinary motion costs in justification of this-appeal. The appeal is entirely frivolous and, while the order is reversed for reasons stated, the appellant should recover no costs. By the Court. — Order reversed. No costs to be taxed. Appellant to pay the clerk’s fees in this court.