Hungerford v. Cushing , 2 Wis. 416 ( 1853 )

By the Ooiori,

Whitou, C. J.

This is an appeal from an order of the Circuit Court for Dane county, denying a motion to vacate a former order of the court, for irregularity. It appears that an order was made on the 31st of December, 1852, that the complainant should remain in possession of the property described in the bill of complaint, until the further order of the court. There is no doubt that the order was irregular, as will appear by a reference to the opinion of the court in the preceding case. The only question is, whether the proper course to procure its reversal, was to take it to the Supreme Court by appeal, or to apply to the Circuit Court in the first inS^ance5 and if that court refused to vacate it, to appeal the order of the court containing the refusal. The appellants have adopted the latter course,

It was held in the case of Gibson et. al. vs. Martin, 8 Paige, 481, that no appeal would lie from an order which was merely irregular, hut that application must he made in the first instance to the court in which the order was made, to set it aside for irregularity ; and if the Court should refuse to set it aside, its decision denying the application, would form a proper subject of appeal. I think the appellants have adopted the proper course, and the order of the Circuit Court must therefore he reversed, with directions to that court, to vacate the order of the 31st of December, 1852, above alluded to.