Trowbridge v. Sickler , 48 Wis. 424 ( 1880 )

Obtos, J.

In this case, upon appeal to this court, the judgment was reversed and a new trial ordered; but the record still remains in this court, and has not been transmitted to the circuit court, and no remittitur from this court has been filed with the cleric of that court. More than one year had elapsed since the date of such order for a new trial, -when, upon motion of the counsel of the appellant, the defendant in the action, the circuit court made an order dismissing the action, and for an assessment, by a jury, of the value of the property taken by the writ of replevin, and such assessment was made. Thereupon, upon motion of the counsel of the respondent — the plaintiff in the action, — -the circuit court made the order setting aside such order of dismissal and for such assessment, from which this appeal is taken. The reason given in the motion papers why the remittitur from this court has never been made, and the records have not been transmitted to the circuit court, is, that the costs in this court have never been paid; and the appellant insists that it was the duty of the respondent to pay such costs, obtain such remittitur, and have the record transmitted to the circuit court, and proceed to a new trial in the action, within one year from the date of said order; and that in default thereof the action was properly dismissed by virtue of the statute, now found in section 3072 of the revised statutes.

"We do not decide whose duty it was to pay such costs and cause such a transmission of the record to the circuit court. But, assuming tllat it was the duty of the respondent to do so, we are clearly of the opinion that the circuit court had no jurisdiction to take any such proceedings in the action until it had possession of the record by a remittitur. How could the circuit court say, as it does in the recitals of its order of dismissal and for an assessment by a jury: “ And it further agypearwig to the court that the action is replevin, and that the property in controversy was seized and delivered to the plaintiff, and the defendant having given notice in his answer of a demand for judgment for the value, instead of for the return of the property; . . . and it further agopeari/ng that more than one year had elapsed since the reversal of judgment, and an award of a venire cle wcw,.bythe supreme court” —when that court could legally and properly know such condition of the cause and such proceedings therein by the record alone, and no such record was before the court or on file with the clerk? If the appellant wished to move for a dismissal of the action, and thereupon for an assessment by a jury of the value of the property taken by the writ, by reason of such delay, he should first have procured a remittiiitr and transmission of the record to the circuit court, so as to give that court jurisdiction to take such action in the cause.

The statute provides, in section 3067, Revised Statutes, that “ when the amount of damages to be paid by the appellant, on affirmance of the judgment or order appealed from, pursuant to any undertaking, is not fixed by the judgment or decision of the supreme court on the appeal, the circuit court may, after the remittitur of the record from the supreme court is filed, order a reference to ascertain such damages,” etc. And; again, in section 8071: “ In all cases the supreme court shall remit its judgment or decision to the court from which the appeal or writ of error was taken, to be enforced accordingly.” “ The clerk of the supreme court shall remit to such court the papers transmitted to the supreme court on the appeal or writ of error, together with the judgment or decision of the supreme court thereon,” etc. These provisions clearly show that the circuit court can take cognizance of the cause only upon a remittitur of the record filed in that court. The judgment of the supreme court is remitted to the circuit court, together with the record on which it was made, to be there enforced; and they must therefore be bronfat formally to the notice of that court, and, until the judgment of the supreme court is incorporated in its records, no proceedings can be instituted to enforce its directions. Seacord v. Morgan, 17 How. Pr., 894; Lawrence v. Bank of Republic, 6 Rob., 497; Vermilye v. Seldon, 6 How. Pr., 41.

After the remittitur has been regularly sent to the court below, and actually filed with the clerk of such court, the supreme court then loses jurisdiction of the cause, and the court below only has jurisdiction, therein. Dresser v. Brooks, 2 N. Y., 559; Frazer v. Western, 8 How. Pr., 235; Legg v. Overbagh, 4 Wend., 188; Cushman v. Hatfield, 52 N. Y., 653.

The proper practice seems to be, that the remittitur from the supreme court is sent to and filed by the clerk of the court below, and notice of such filing given to the opposite party, before any proceedings can be taken in the cause in such court. McGregor v. Buell, 33 How. Pr., 450. The statutes of New York, in respect to the judgment roll and to a remittitur from the'appellate court to the court below, are very similar to our own, and therefore these authorities are applicable.

By the Coiurt. — The order of the circuit court is affirmed, with costs.

Tayloe, J., took no part in this cause.