Steckmesser v. Graham , 10 Wis. 37 ( 1859 )

By the Court,

Paine, J.

This is an appeal from an order of the circuit court of Dodge county, striking from the files a transcript of a justice’s judgment, and vacating the docket entries thereon. It appears from the papers used in the court below, that an appeal was taken from the judgment of the justice, by the defendants, without, however, specifying to what court; and the justice, supposing that the ward in which he acted, had been attached to Jefferson county, by an act of the Legislature, which was afterwards held by this court not to have that effect, returned the papers to the circuit court of that county, where the appeal was afterwards dismissed. The plaintiff filed the certificate of dismissal with the justice, and obtained and filed the transcript, which was stricken off by the order appealed from. Upon this state of facts, we think the appeal from the justice was still in force. His sending the papers • to the wrong court, ought not to deprive the party of the right to have them returned to the proper court, if his appeal was properly taken. And so the court below understood it; for in the order to show cause, it required the justice to make a return on the appeal to that court.

The question, then, is, whether, the appeal being in force, the plaintiff was entitled to obtain and file a transcript or not. Had this question occurred under the statutes of 1849, it might admit of some doubt. The party then was required to give security, in order to perfect the appeal; and being perfected, all proceedings on the judgment were suspended § 232, chap. 88, R. S. 1849. But the" provisions of tjie code, under which this appeal was taken, contemplate, that an appeal does not, per se, stay proceedings on the judgment; but they provide for a “ stay of execution,” simply, by giving the requisite undertaking. § 258, 259, 260. The effect of these sections would seem, by a fair construction, to be only to stay the execution; and as there is nothing in this repugnant to the right of filing a transcript, as provided for in sec. 184, R. S. 1849, which was still in force, we think the party must be still held to have this right. It is true the debt would be otherwise secured by the undertaking staying the execution; but as the code implies the right to proceed on the judgment, notwithstanding an appeal, and provides that giving an undertaking shall stay execution only, we do not feel authorized to say that it shall have the further effect of depriving the party of his right to file a transcript. If it is desirable that it should have this effect, it is for the Legislature to provide for it. We think, therefore, the circuit court erred in the order appealed from.

It is suggested, in the respondent’s brief, that the circuit court has control over such transcripts. That may be so, to . a certain extent. They may undoubtedly strike them off, or vacate the entries made upon them, whenever a proper case is presented; but they have no such discretion in regard to it, that they may strike them off when the party has a legal right to have them remain.

It was also objected, that it appears from the docket entries of the justice, that he altered the judgment after entering it; but it appears from the entry, that it was done at the desire of the defendants, and they have filed no affidavit denying it. If this was so, even if the justice had no. authority to make the alteration, they are estopped from objecting to it. And although it is undoubtedly true, as a general rule, that a justice has no authority to alter a judgment or record after having once made it, yet the authorities which establish it, assume that he might do it upon consent of the parties. The People vs. Delaware, 18 Wend., 558; People vs. Lynde, 8 Cow., 133. The record shows clearly enough, that this alteration was made after the entry of the judgment, and the date of it is a mere mistake, which does not affect the merits of the question.

The order appealed from is reversed, with costs.