Steinam v. Schulte , 83 Wis. 567 ( 1892 )

Cassoday, J.

Undoubtedly a justice of the peace may, in the exercise of a sound discretion, dismiss an action whenever the plaintiff is ordered to give security for costs and unreasonably refuses or neglects to do so. Sec. 3782, R. S.; Campbell v. C. & N. W. R. Co. 23 Wis. 490. That case was heard “ on the original papers and the return of the justice, containing all the material evidence and his rulings in the action,” as prescribed by sec. 3767, R. S., and no affidavit was filed or made as required by subd. 2, sec. 3768, R. S.; and hence the county court could only affirm or reverse the judgment. Stoppenbach v. Zohrlaut, 21 Wis. 385. The question here presented was not there involved. The mere fact that the plaintiff refused to give security for costs, as ordered in the case at bar, did not deprive the justice of jurisdiction, nor did the order and judgment of the justice dismissing the action prevent an appeal therefrom. Berray v. Woodruff, 6 Wis. 202. Such a judgment, whether with or without costs, is “ a final judgment,” within the meaning of sec. 3753, R. S., and is therefore appealable. Id.; Collins v. Waggoner, 20 Wis. 48; Stoppenbach v. Zohrlaut, 21 Wis. 385; Hewett v. Currier, 63 Wis. 390. Being appealable, the only remaining question is whether it was to be heard in the superior court upon the original record or de novo. The statute declares, in effect, that “ the appeal shall be tried in the appellate court as actions originally brought there,” whenever “ the plaintiff appeals from a judgment against him, ... if, at the time of appealing, he shall make an affidavit that he has a valid claim,(as he verily believes, against the defendant, as set forth in his complaint, exceeding the sum of fifteen dollars.” Sec. 3768, R. S. Such an affidavit was here made and filed by the plaintiff, and, in the language of the statute cited, the appeal must “ be tried in the appellate court, as an action originally brought there.” This works no injustice to the defendant, since the undertaking given by the plaintiff on the appeal from the justice indemnifies him as fully as though the plaintiff had given security for costs as ordered.

By the Court.— The judgment of the superior court is reversed, and the cause is remanded for a new trial.