Kidder v. Fay
Wisconsin Supreme Court
APPEAL from the Circuit Court for St. Croix County. The action was brought before a justice of the peace and the plaintiff recovered. The defendant attempted to appeal to the circuit court. The paper purporting to be an affidavit of appeal is in due form and signed by the defendant, but there is no certificate appended to the affidavit that it was sworn to before any officer or person.
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APPEAL from the Circuit Court for St. Croix County. The action was brought before a justice of the peace and the plaintiff recovered. The defendant attempted to appeal to the circuit court. The paper purporting to be an affidavit of appeal is in due form and signed by the defendant, but there is no certificate appended to the affidavit that it was sworn to before any officer or person. There is the form of a jurat, but the same is unsigned. ■ The justice made return to the circuit court, and the plaintiff moved to dismiss the appeal because the record contains no affidavit of appeal.. The…
1Opinion of the CourtLyoN, J.
It is urged, by counsel for plaintiff, that, because there is no affidavit of appeal, the record fails to show a valid appeal from the judgment of the justice, and hence that the circuit court should have dismissed the same. We are of that opinion. The jurat not being signed, the legal presumption is that the paper in the form of an affidavit of appeal was not sworn to; in other words it is not an affidavit. Royston's Appeal, 53 Wis., 612. So the record contains no affidavit of appeal. Such an affidavit is absolutely essential to the jurisdiction of the circuit court, and the same must appear…
2Cases cited5 opinions
- Iverslie v. SpauldingWisconsin Supreme Court · 1873
- Appeal of RoystonWisconsin Supreme Court · 1881
- Evangelical Lutheran St. Peter's Gemeinde v. KoehlerWisconsin Supreme Court · 1884
- Lederer v. Chicago, Milwaukee & St. Paul Railway Co.Wisconsin Supreme Court · 1875
- Spaulding v. Milwaukee, Lake Shore & Western Railway Co.Wisconsin Supreme Court · 1883
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- Trustees of Ashland Lodge No. 63 v. WilliamsWisconsin Supreme Court · 1898
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- Saltzstein v. NahmensWisconsin Supreme Court · 1913
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