Hallam v. Stiles
Wisconsin Supreme Court
APPEAL from the Circuit Court for Ohijpgyewa County. Action to recover upon an undertaking on appeal executed by one G. E. Nickey as principal, and by the defendants, A. S. Stiles and John Rumsey, as sureties.
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APPEAL from the Circuit Court for Ohijpgyewa County. Action to recover upon an undertaking on appeal executed by one G. E. Nickey as principal, and by the defendants, A. S. Stiles and John Rumsey, as sureties. The cause was tried by the court, which found the facts as follows: A judgment in favor of the plaintiff and against G. E. Nickey and Charles C. Putnam, for the sum of $886.57, was rendered by the circuit court for Green county, October 5, 1876. Prom that judgment Nickey appealed to the supreme court, and upon such appeal the undertaking in question was executed. On the '27th of April,…
1Opinion of the CourtCassoday, J.
It is claimed that the plaintiff’s remedy upon the undertaking, if any, was against Nickey and the sureties jointly, and not against the sureties separately. To make such objection available, it should have been raised either by demurrer (E. S. sec. 2649, subd. 4) or answer (E. S. sec. 2653). Not having been so taken, the defendants must be deemed to have.waived the same. E. S. sec. 2654.
It is urged that the record does not show that the appeal was dismissed for want of prosecution. But the trial court so found, and there is no exception to that finding, and hence it must be taken as a verity.
2Cited by6 opinions
- McLennan v. PrenticeWisconsin Supreme Court · 1893
- J. I. Case Threshing Mach. Co. v. PedersonSouth Dakota Supreme Court · 1894
- Sherwood v. MerrittWisconsin Supreme Court · 1892
- Will of BrittWisconsin Supreme Court · 1921
- Radant v. Werheim Manufacturing Co.Wisconsin Supreme Court · 1900
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