Bannister and others vs. Patty's Executors.

91; Leedom v. Pancake, 4 Yeates, 183; Legrand v. Baker, 6 Mon., 235-248); that Bannister is not a competent witness to prove the alleged demand of the notes specified in the contract upon which the action is founded, since that was a transaction between himself and the defendants' testator, as to which he cannot speak; and that it does not appear from his affidavit that he will be able to establish such demand by other and competent proof, the mere statement that he will be able to establish it "by competent proof" not being sufficient without a further specification of the proof.

For the respondents, the cause was submitted on the brief of Edward S. Bragg. He contended that the order of the circuit court, setting aside the referee's report, without saving anything that had been done before him, left the case standing upon the pleadings, at issue and ready for trial, the same as if no trial had ever been had; that defendants neither appealed from the order, nor made any claim for a dismissal of the complaint (the fact being that the demand of the notes constituted no part of the issues controverted between the parties, and that the lack of proof of such demand was first discovered in this court); that the determination of this court, on plaintiffs' appeal, affirming the order of the circuit court, still left the case at issue, ready for a new trial; and that the authorities as to the conditions upon which a verdict will be set aside and a new trial granted, are therefore wholly inapplicable.

LYON, J. The former appeal was taken by the plaintiffs from an order of the circuit court setting aside the report of the referee in their favor. The action is to recover a balance claimed to be due for materials furnished and labor performed by the plaintiffs for Benjamin S. Patty, the defendants' testator, pursuant to a certain contract between them. The contract provided that Mr. Patty should give his notes, due in one, two and three years from the completion thereof, for fifty

Bannister and others vs. Patty's Executors.

per cent. of the agreed price for such materials and labor. The balance claimed in the action is less than fifty per cent. of the whole contract price, and is, therefore, included in this provision. The action was commenced less than one year after the completion of the contract, and there was no evidence that Mr. Patty was ever called upon to give his notes for the unpaid balance. This court affirmed the order setting aside the report of the referee, on the sole ground that, in the absence of such proof, presumptively the action was prematurely brought; and the cause was remanded "for further proceedings according to law."

The learned counsel for the defendants maintain that the judgment of this court left nothing for the circuit court to do but to render judgment dismissing the complaint; and hence, that it was error for that court to refer the cause for a retrial of the issues. We cannot concur in this view. Certainly the judg ment of this court contains no mandate to the circuit court to dismiss the complaint. It merely directs further proceedings according to law, and does not, and was not intended to, interfere with the power of the circuit court, on proper application, to grant another trial either before a referee or a jury. Had no application been made for a retrial of the cause, the duty of the circuit court is stated in the opinion on the former appeal, 35 Wis., 228. In such case, the court should have modified the report of the referee as there indicated, and judgment dismissing the complaint would have been the necessary result. But nothing which is said in that opinion is in the way of granting the motion to re-refer the cause, when it is made to appear that the evidence which was wanting on the first trial can be supplied, and that the plaintiffs' failure then to produce it is excusable.

When the circuit court set aside the report of the referee, it undoubtedly had authority in its discretion to re-refer the cause to the same or some other referee to hear, try and determine the issues. In the absence of any mandate from this

Johnson vs. The Chicago, Milwaukee & St. Paul R'y Co.

court to the contrary, we see no valid reason why that court may not do so after the affirmance of the order setting aside such report.

It was within the sound discretion of the circuit court to grant the relief asked by the respondents, and we cannot interfere unless the granting of such relief was an improper exercise of that discretion. Looking into the affidavit upon which respondents' motion was founded, it seems very clear to us that sending the cause back to the original referee to hear, try and determine it, was not an abuse of discretion.

fore, affirm the order appealed from. By the Court. - Order affirmed.

We must, there

JOHNSON VS. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.

JURISDICTION: Notice of appeal.

Where the notice of appeal from a justice's judgment, and the undertaking, expressly state that the appeal is to the circuit court of the county, while, by law, an appeal lies from justices' courts, in that county, only to the county court, the latter does not acquire jurisdiction.

APPEAL from the County Court of Dodge County. The action was brought before a justice of the peace of Dodge county. The plaintiff recovered, and the defendant company appealed from the judgment of the justice, specifying in the notice of appeal that it appealed "to the circuit court of Dodge county." An undertaking to stay execution was given, in which it was recited that the appeal was to that court. These proceedings were had in December, 1875. The justice made return to the appeal to the circuit court. On plaintiff's motion, that court dismissed the appeal for want of

Johnson vs. The Chicago, Milwaukee & St. Paul R'y Co.

jurisdiction, and ordered that the papers and records in the case be transmitted to the county court of Dodge county; and they were so transmitted. The plaintiff thereupon moved the county court to dismiss the appeal for want of jurisdiction; and from an order of that court granting the motion, defendant appealed.

The cause was submitted on the brief of Melbert B. Cary for the appellant, and that of H. W. Lander for the respond

ent.

For the appellant it was argued, that the statute (R. S., ch. 120, sec. 205) gives an appeal from justice's court, where the party or some person authorized by him, within a specified time, presents to the justice a notice of appeal, together with an affidavit that the appeal is made in good faith, and not for the purpose of delay which was done in this case. "The statute does not prescribe what the notices shall contain. Its object is to inform the justice that an appeal is taken, and in what suit. And if it is sufficiently accurate to accomplish this purpose, a mere inaccuracy in some particular ought not to invalidate." Hills v. Miles, 13 Wis., 625. The words "circuit court" were not necessary to a perfect appeal, and may be regarded as surplusage.

LYON, J. By ch. 86, Laws of 1872, as amended by ch. 169, Laws of 1874, the county court of Dodge county has exclusive jurisdiction of appeals from the judgments of justices of the peace of that county. In this case, the appeal from the justice's judgment was expressly taken to the circuit court. That court had no jurisdiction of the appeal, and very properly dismissed it. We are now asked to hold that there was a valid appeal to the county court of Dodge county, and that the latter court erred in dismissing it.

Had the notice of appeal failed to specify the court to which it was taken, it might, perhaps, be held a good appeal to the county court, on the authority of Steckmesser v. Graham, 10

Cook vs. The Berlin Woolen Mill Company and others.

Wis., 37. But we do not see our way clear to hold this when the notice specifically declares that the appeal is to the circuit court. We are aware of no rule of law which will authorize the county court to take jurisdiction of such an appeal. On the contrary, the rule doubtless is, that an appeal to a court having no jurisdiction thereof is not an appeal to some other court to which it might have been taken. The principle would be the same had the appeal from the justice's judgment been taken directly to this court. We apprehend no one would claim that to be a good appeal to the county court of Dodge county.

We conclude that if the appellant specifies in his notice the court to which he appeals, he is to be taken at his word. If the court so specified has the necessary appellate jurisdiction, the appeal is effectual; otherwise not. The appeal cannot lawfully be sent on a pilgrimage to find a court with jurisdiction to entertain it had it been properly taken in the first instance.

By the Court.-The order of the county court is affirmed.

COOK VS. THE BERLIN WOOLEN MILL COMPANY and others.

EQUITY: PRIVATE CORPORATIONS: SALES. (1–3) Conveyance of property of private corporation to its directors. (4-6) Sale of such property to ministerial officer of the corporation. (7) Ratification. (8) Right of action to avoid such sale.

1. Equity deals with the directors of a private manufacturing corporation as trustees of the corporation; but with merely ministerial officers (in this case the superintendent of the company's mills), as agents.

2. It is settled in this state that trustees cannot purchase, on their own account, any interest in property of their cestui que trust.

3. While a contract of sale of real property of their cestui que trust to a stranger remains executory, trustees cannot purchase of such stranger; VOL. XLIII-28