Hundhausen v. Atkins , 36 Wis. 250 ( 1874 )

Lyon, J.

The motion must be granted, on two grounds

1. Service of the printed case was not due when the order was entered. Had the cause never been noticed for argument, such service, if made eight days before the next term at which it may be so noticed, would be in time. The continuances of the cause beyond the last and the present term, leave it in precisely the same condition as though no notice of argument had ever been given.

2. Although the appellant may fail to serve the printed case within the time specified in Rule 10, yet an order dismissing the appeal for that reason cannot be regularly entered after such service is actually made. Failing to enter the order until after the case is served, it must be held that the respondent has waived the laches of the appellant in that behalf.

By the Court. — Motion granted, with the usual costs.