Noall v. Halonen

Appeal from justice's court: Sufficiency of notice. 1. The' notice Of appeal from a justice’s court is sufficient when it identifies the party appealing and the cause in which and judgment from which the appeal is taken. 2. In such a notice the spelling of plaintiff’s surname Noel instead of Noall, and of a defendant's given name as Manuel instead of Emanuel, and describing the judgment as for $162.02 damages and $5.50 costs, when the total amount including costs was $163.02, are held immaterial variances.

APPEAL from the Circuit Court for Florence County. This action was commenced in justice’s court, November 24, 1891, by the personal service of the summons upon the defendants, Carlson, Halonen, and Anderson. On the return day, December 3, 1891, no one appearing for any of the defendants, the plaintiff filed his complaint, alleging that between September 16, 1891, and November 24, 1891, inclusive, the plaintiff sold and delivered to the defendants, on account, at their request, goods, wares, and merchandise at the agreed price of $150.57, and which were reasonably worth that sum. Thereupon judgment was entered in favor of the plaintiff and against the defendants for said sum, together with $11.45 costs, making a total of $162.02. On December 19, 1891, the appellant delivered and filed with the justice a notice of appeal, which, omitting the title, was as follows, to wit: “ To Robert Mitchell, Esq., Justice of the Peace: Take notice that the below-named defendant hereby appeals to the circuit court for said county of Florence from the judgment rendered in this action before Eobert Mitchell, Esq., the said justice of the peace, on the 3d day of December, A. D. 1891, in favor of the above-named William Noel and against the above-named Leo Halonen et al. for one hundred and sixty-two 02-100 dollars damages and five 50-100 costs. “ Dated December 19th, A. D. 1891. “ Leo HaloNKN, Defendant,- “ By Julius J. Patee, His Agent.” At the same time the appellant filed with said justice the usual affidavit for such appeal. The justice thereupon returned said cause to the circuit court, and May 18, 1892, said cause, being on the calendar, was by order of the court stricken therefrom, for the reason that no issue had been joined therein; and it was ordered that the defendant have leave to file and serve an answer to the complaint in said cause. Such answer was filed and served June 1, 1892. Said cause was thereupon noticed for trial at the September term of said court for 1892. On August 31, 1892, the plaintiff obtained an order from the county judge, requiring the appellant to give security for costs on said appeal, and served a copy thereof on the appellant’s attorney. On September 20, 1892, the circuit court ordered that said appeal be and the same was thereby dismissed, with costs, and it was further ordered that all the papers in the case be transmitted to said justice. From said order or judgment of dismissal the said Halonen appeals. To the point that the notice is fatally defective, they cited Ohinnoeh v. Stevens, 23 Wis. 398; PetUngill v. Donnelly, 27 Minn. 332; Morris v. Brewster, 60 Wis¡ 229, 231; '2 S. & B. Ann. Stats., p. 1998, note.