Herrick and another vs. The Racine Warehouse and Dock Company. the appeal, for the reason that it was taken after the time therefor had expired. The papers filed in support of the motion show the dates of the entry of judgment and service of notice of appeal on plaintiffs' attorney. The affidavit of defendant's attorney, in opposition to the motion, states the other facts above recited. James G. Jenkins, for the motion. [No brief on file.] John W. Cary, contra, argued, 1. That plaintiffs' attorney, by retaining the appeal papers without objection, had waived his right to make this motion upon the ground assigned, and was estopped. To the general doctrine that irregularity in the service of a paper, or its service out of time, is waived by receiving and acting upon it, he cited Georgia Lumber Co. v. Strong, 3 How. Pr., 246; McGown v. Leavenworth, 2 E. D. Smith, 30, 31; Sherman v. Gregory, 42 How. Pr., 481; Knickerbacker v. Loucks, 3 id., 64; 1 id., 240; 2 id., 146; and to the point that this doctrine is applicable to notices of appeal, where the time of appealing is fixed by statute, and the notice not served in time, Salles v. Butler, 27 N. Y., 638; Stevenson v. McNitt, 27 How. Pr., 335; Struver v. Ins. Co., 9 Abb. Pr., 23; Pearson v. Lovejoy, 53 Barb., 407 (35 How. Pr., 193-7); People v. Erie C. P., 6 Wend., 549; Stone v. Morgan, 10 Paige, 615. 2. That the acts of plaintiffs' attorney, not only in delaying to make this motion for nearly six months after appeal taken, but still more in directing the clerk of the court below to send up the appeal papers, thus recognizing the appeal as existing, and proceeding under it, constituted a waiver and estoppel. 3. That this court had jurisdiction of the appeal, notwithstanding the failure to serve the papers within two years, because it has, by the constitution, general appellate jurisdiction, with power to review all judgments on appeal, so that, but for the statute limiting the time, it might review judgments on appeals taken at any time, and in such a case a respondent may waive the statutory limitation in his favor. Jacobs v. Morange, 1 Daly, 523. Herrick and another vs. The Racine Warehouse and Dock Company. RYAN, C. J. Section 9 of the appeal act limits the time of appeal from judgment to two years. And this court has no power to amend the statute by enlarging the time. Van Steenwyck v. Miller, 18 Wis., 320. If we had any discretion, we should assuredly exercise it in a case like this, where the right of appeal appears to have been lost by mere inadvertence. But, to give this court jurisdiction of an appeal, the return of the court below must show an appeal perfected within the time and in the manner prescribed by the statute. Yates v. Shepardson, 37 Wis., 315; Eaton v. Supervisors, 42 id., 317. The learned counsel of the appellant cited several cases in New York, holding that respondents had waived the right of objecting that the appeal was taken too late. It is difficult to comprehend how a party can cure want of jurisdiction in the court to entertain a proceeding, by waiver. And there appears to us to be an unaccountable inconsistency in the cases in New York on the question. For it is there held that the courts possess no power, directly or indirectly, to enlarge time for appeal. Humphrey v. Chamberlain, 11 N. Y., 274; Wait v. Van Allen, 22 id., 319. It appears to follow that if a court cannot restore its own jurisdiction, lost by statutory limit, the parties cannot restore it by consent. For it is not jurisdiction of the person, but of the proceeding. And we are unable to comprehend how that could be done by the implied consent of waiver, which cannot by express consent. By the Court. The appeal is dismissed. Coarboneau vs. Orton and another. CHARBONEAU VS. ORTON and another. ACCORD AND SATISFACTION: EVIDENCE: (1-3) Whether a receipt was in Proof of intent. full, upon its face. ATTORNEY AND CLIENT: (4) Duty of attorney as to payment of moneys collected, and how enforced. 1. A receipt given by a client to his attorneys was for a certain sum, "being the amount collected by them," at a specified date,“ on the judgment recovered by me [describing the judgment by the venue and parties defendant], "with interest up to that date, leaving in their hands $500, balance for their services claimed by them, and also the attorneys' fees, state tax and affidavits [disbursements?] included in the taxed bill of costs." Held, that this did not purport, on its face, to be a receipt in full; and the question whether the money was received in full payment of the receiptor's claim on account of such collection, must be determined by other evidence. 2. Upon the testimony (for which see the opinion), this court concurs in the finding of the court below, that the sum named in the receipt was accepted by plaintiff as full payment, subject only to any deduction from defendants' charges to which one of them (not present at the settlement) should consent; and that the latter never consented to any deduction. 3. The court below rejected plaintiff's testimony that certain erasures and interlineations made in the receipt before he signed it, were made in order to satisfy him that it was not so drawn as to show a final settlement. This court, regarding these alterations as not changing the legal effect of the instrument, decides the cause as though the evidence had not been stricken out, without determining whether it was in fact admissible. 4. An attorney having in his hands moneys collected for his client, though he may retain out of them reasonable charges for his services, cannot exact a receipt in full as a condition of paying over the amount admitted to be due the client; but the court, on summary application, after due demand, will compel the attorney to pay over such amount, requiring the client only to receipt therefor on account. APPEAL from the Circuit Court for Jefferson County. The defendants, who were attorneys and partners in business, brought an action for the present plaintiff against John Jung and others, to recover a sum of money alleged to Charboneau vs. Orton and another. The plaint- be due from the latter to the plaintiff. That action was litigated through the circuit and supreme courts, and resulted in a judgment for the plaintiff. The defendants collected the judgment in December, 1872, receiving thereon $2,695.09, besides $25 costs in this court. The money was received by the defendant Mulberger, who immediately notified the plaintiff of the fact. The parties thereupon attempted to adjust their accounts in respect to the defendant's services in that action (concerning which there was no special contract between them), but were unable in the first instance to do so. Mr. Mulberger demanded $500 and the taxable attorney's fees for such services, in addition to $120 which the plaintiff had previously paid them on account thereof. iff was not willing to allow them those sums. berger offered to pay the plaintiff $2,115.93 of the money so collected; but, in two interviews between them, the plaintiff declined to accept that sum in full. At a third interview, however, he accepted the last mentioned sum from Mr. Mulberger, and gave him therefor the following receipt: "Received of Orton & Mulberger $2,115.93, being the amount collected by them on the 14th day of December, 1872, on the judgment recovered by me in the Dodge county circuit court, against John Jung et al., with interest up to that day, leaving in their hands five hundred dollars balance for their services claimed by them, and also the attorney's fees, state tax and affidavits included in the taxed bill of costs. Dated January 6th, 1873. L. CHARBONEAU." Probably the word "affidavits" in the receipt should be read "disbursements." This action is to recover the balance of the collection thus left in the hands of the defendants. The original answer contained a counterclaim, quantum meruit, for services in the action against Jung and others, to an amount exceeding such balance. The cause was referred to three referees to hear, try and determine the issues. On the trial before the referees,. VOL. XLIII.-7 Charboneau vs. Orton and another. the defendants were permitted to amend their answer by inserting therein an averment that the plaintiff accepted and received the money mentioned in the receipt, in full satisfaction of his demand. The facts above stated are established by the evidence introduced on the trial. On the issue made by the amendment to the answer, the testimony is conflicting. A statement of it will be found in the opinion of the court. The referees found that there was no final settlement between the parties, and adjusted their accounts, finding a balance of $128.76 due from the defendants to the plaintiff. The circuit court, on motion and exceptions, made an order setting aside the findings and report of the referees in these particulars, and modified the same by finding that the $2,115.93 was received by the plaintiff and accepted in full settlement for the moneys collected for him by the defendants, subject only to any deduction from the defendants' charges which Judge Orton might consent to; that the latter never consented to any deduction; and that the defendants were not indebted to the plaintiff, and were entitled to judgment that the action be dismissed, with costs. From this order the plaintiff apappealed. N. Bruett and G. W. Bird for appellants: 1. The receipt was open to explanation by parol, and plaintiff's evidence as to the purpose of the alterations apparent thereon was competent. Woodman v. Clapp, 21 Wis., 350; Clifford v. Baessman, id., 597; State v. Dickinson, 41 id., 299; Seymour v. Wilson, 14 N. Y., 567. 2. The settlement claimed by defendants was not established. They first based their defense upon quantum meruit, and alleged a balance due them. This was inconsistent with their subsequent claim of a settlement in full. The destruction of the receipt in full, and substitution of another, shows that there was no settlement. Defendants had the burden of proof. Sanborn v. Babcock, 33 Wis., 400. The evidence being contradictory, with no decided preponderance either way, a presumption arises that the |