Loss of right to appeal. 5. A party loses his right to appeal directly from an order granting a new trial by failing to perfect his appeal before judgment is rendered on the verdict given on the second trial, in which both parties participated. Keller v. Gilman, Guardian ad litem: Leave of court. 445 6. A guardian ad litem may take an appeal without leave of court, and it is his duty to do so if, after a careful examination of the case, he deems that course necessary for the protection of his ward. Jones v. Roberts, 427 Waiver of objections. 7. On an appeal from an irregular judgment, taken within the time provided by law, delay in moving to set the judgment aside cannot be held to constitute a waiver of the irregularity. Packard v. Kinzie Ave. Heights Co. 114 8. The objection that certain findings of a special verdict should have been set aside as contrary to the undisputed evidence, and judg ment given on the other findings and such evidence, is not available on appeal unless a motion to that effect was first made in the trial court. Conroy v. C., St. P., M. & O. R. Co. 243 Record: Bill of exceptions. 9. An order granting a new trial does not necessarily affect the judg ment within the meaning of sec. 3070, R. S., allowing intermediate orders and determinations which involve the merits and necessarily affect the judgment to be reviewed upon appeal, whether excepted to or not, where they appear upon the record. Such an order, and the matter upon which it is founded, does not therefore become a part of the record, and cannot be reviewed on appeal from the judgment rendered on the second trial unless incorporated into the bill of exceptions. Keller v. Gilman, Findings of fact, when disturbed. 445 10. Findings of the trial court cannot be disturbed unless they are clearly against the preponderance of the evidence. Clausen v. Hale, 100 11. The rule that findings of the trial court or of a referee will not be disturbed unless clearly against the preponderance of the evidence applies to all trials by the court or a referee, in equitable as well as in legal actions, including cases where the testimony is taken by a referee and reported to the court. Momsen v. Plankinton, 166 Affirmance and reversal: Material and immaterial errors. See CRIMINAL LAW. 4. 6, 10. DAMAGES, 1. INSTRUCTIONS TO JURY. PRAC TICE. RAILROADS, 15, 18. VERDICT, 2. WILLS, 3. 12. Defects in the complaint constitute no ground for reversal of a judgment in plaintiff's favor where they might have been cured at any time by amendment conforming the pleading to the facts conclusively proved by evidence admitted without objection. Hubbard v. Haley, 578 13. Where the same matter is pleaded both in abatement and in bar, the direction of a verdict for the defendant on the plea in bar, after trial on the merits, without finding on the plea in abatement, is not error prejudicial to the plaintiff. McCue v. Waupun, 625 Costs. See WILLS, 7, 8. APPEAL FROM JUSTICE'S COURT. See EVIDENCE. JUSTICES' COURTS. See MUNICIPAL CORPORATIONS, 9. APPEAL FROM COMMON COUNCIL. GARNISHMENT. See MUNICIPAL CORPORATIONS, 7. ARGUMENTS to jury: Improper remarks: Error, how cured. See PRAC TICE. ASSAULT. See PLEADING, 1. ASSESSMENT for taxation. See MUNICIPAL CORPORATIONS, 5. TAXATION, 5-7. ASSESSMENTS for local improvements. See TAXATION, 1-4. TAX TITLES, 4, 5. ASSIGNMENT. Of cause of action. See ACTION, 1. CORPORATIONS, 12, 13. COSTS, 1. Of contract. See CONTRACTS, 1. Of corporate stock. See BANKS AND BANKING, 2. CORPORATIONS, 5. For benefit of creditors. See VOLUNTARY ASSIGNMENT. ATTACHMENT. See DAMAGES, 2. 1. In attachment proceedings against a corporation, the evidence showing, among other things, that substantially all the stock was owned by the president, who practically exercised the whole power of the corporation; that he kept no systematic books of account and possessed no accurate knowledge of its financial condition; that he conducted his private business and that of the corporation together; that he applied funds of the corporation to his private use when he knew or ought to have known it to be insolvent; that he incurred a large amount of indebtedness in the name of the corporation, and treated its assets as individual property is held to sustain a finding that the corporation had assigned, conveyed, or disposed of its property, or was about to do so, with intent to defraud creditors. Senour Mfg. Co. v. Clarke, 469 2. In an action for the conversion of plaintiff's horses by a sheriff who had attached them as the property of her husband, it appeared conclusively that for a long time prior to the attachment the horses had been under the complete and exclusive control of the husband; that upon the release of the attachment the sheriff delivered the horses to third persons in pursuance of a contract of sale entered into with them by the husband as plaintiff's agent; and that the release was procured by attorneys in the employ of the husband. Held, that the horses had been in legal effect redelivered to the husband, even though the contract of sale was not binding upon plaintiff. Dishneau v. Newton, 531 3. A writ of attachment is not entirely void because issued to collect a debt part of which was not due, even though all the statutory requisites of an attachment for a debt not due had not been complied with, the debtor's remedy being limited to a modification of the writ and a release of the property as to the debt not due, under sec. 2744, R. S. Hubbard v. Haley, ATTORNEYS AT LAW. See COUNTIES, 2-4. PRACTICE 578 BANKS AND BANKING. See CORPORATIONS, 22. COURTS, 2, 3. CRIMINAL LAW, 1-4. VOLUNTARY ASSIGNMENT, 2. 1. A bank having money on open account to the credit of the maker of a note which it holds is not obliged to apply the money thereon before bringing suit, even if it has the right to make such application without consent. Docter v. Riedel, 158 2. Upon the death of a stockholder in a bank his statutory liability for the debts of the bank under sec. 47, ch. 479, Laws of 1852 (S. & B. Ann. Stats., p. 1228), survives in respect to his estate in the hands of his personal representatives, and may be enforced, without an assignment of the stock to them on the books of the bank, to the extent of the assets received by them. Gianella v. Bigelow, 185 3. The statutory liability of a stockholder for the debts of a bank undersec. 47, ch. 479, Laws of 1852 (S. & B. Ann. Stats., p. 1228), is a liability of all the stockholders to all the creditors, on the principle of copartnership. and can be enforced only by proceedings in equity, to which the bank and all its stockholders must be made parties unless it is impossible or impracticable to bring them all before the court. Ibid. BILL OF EXCEPTIONS. See APPEAL, 9. BONA FIDE PURCHASER. See CORPORATIONS, 8. DEBTOR AND CREDITOR, 1, 3. DEEDS, 5. EQUITY, 5. LIENS, 2. RECORDING ACTS. BOND of assignee. See VOLUNTARY ASSIGNMENT, 1. BOUNDARIES. 1. Evidence of undisputed occupation and fencing for about thirty years in accordance with measurements based upon a reputed government quarter-section line, not only of the piece of land in controversy but of other parcels in that immediate neighborhood, raises a presumption that the line so recognized is the true one; and such presumption is not overcome by evidence that upon a resurvey, based upon no monuments, another line several rods distant was established. Welton v. Poynter, 346 2. In an action of ejectment involving a disputed boundary, evidence - showing, among other things, that the plaintiff and those through whom he claimed had for nearly thirty years held under deeds describing the eastern boundary of their premises as eight rods east of a certain quarter-section line, and that for such time a fence had stood upon a line eight rods east of the reputed quarter-section line, and plaintiff and his grantors had occupied up to such line fence and no further, without controversy — is held sufficient to show a location of the true line by the parties, followed by such long acquiescence as to make it binding on them and their privies. Ibid. BURDEN OF PROOF. See RAILROADS, 19. CANCELLATION of patent of land. See TAXATION, 8. CARRIERS. See LIENS, 10-14. RAILROADS, 6–15. CASES DISTINGUISHED, ETC. 1. Bentley r. Adams, 92 Wis. 386. See No. 7. 2. Bostwick v. Estate of Dickson, 65 Wis. 593 (as to jurisdiction of circuit and county courts), distinguished. Gianella v. Bigelow, 199 3. Button v. Am. Mut. Acc. Asso. 92 Wis. 83 (as to intentional injuries), distinguished. Butero v. Travelers' Accident Ins. Co. 536 4. Cleveland v. Burnham, 55 Wis. 598; Cleveland v. Burnham, 64 id. 347 (as to enforcement of stockholders' liability), expressions disapproved. Booth v. Dear, 516, 521 5. Cleveland v. Burnham, 64 Wis. 357 (as to transfer of stock), distinguished and limited. Gianella v. Bigelow, 193 6. Commercial Bank v. Firemen's Ins. Co. 87 Wis. 297 (as to fraud), distinguished and limited. F. Dohmen Co. v. Niagara F. Ins. Co. 40, 54 7. Cook v. Goodyear, 79 Wis. 606; Bentley v. Adams, 92 id. 386 (as to liens), distinguished. J. B. Alfree Mfg. Co. v. Henry, 333 8. Dean v. Madison, 9 Wis. 402. See No. 21. 9. Forster L. Co. v. Atkinson, 94 Wis. 578 (as to performance of contract by lien claimant), distinguished. J. B. Alfree Mfg. Co. v. Henry, 334 10. Friemark v. Rosenkrans, 81 Wis. 359; Noall v. Halonen, 84 id. 402; Hender v. Ring, 90 id. 358 (as to sufficiency of notice of appeal), distinguished. Clune v. Wright, 11. Hayes v. Douglas Co. 92 Wis. 429. See No. 21. 12. Hender v. Ring, 90 Wis. 358. See No. 10. 13. Jenkins v. Rock Co. 15 Wis. 11. See No. 21. 14. Johnson v. Milwaukee, 40 Wis. 315. See No. 21. 15. Kneeland v. Milwaukee, 18 Wis. 411. See No. 21. 632 16. Lannon v. Hackett, 49 Wis. 261 (as to jurisdiction of circuit courts), limited and explained. Gianella v. Bigelow, 186, 196-9 17. Liebermann v. Milwaukee, 89 Wis. 336. See No. 21. 18. Lovass v. Olson, 92 Wis. 616 (as to devise), distinguished. Littlewood's Will, 608, 611 19. Lueck v. Heisler, 87 Wis. 644 (as to want of probable cause), limited and explained. Strehlow v. Pettit, 23, 28 20. McArthur v. G. B. & M. C. Co. 34 Wis. 139. See No. 29. 21. Myrick v. La Crosse, 17 Wis. 442: Hayes v. Douglas Co. 92 id. 429; Watkins v. Zwietusch, 47 id. 513; Johnson v. Milwaukee, 40 id. 315; Rork v. Smith, 55 id. 67; Dean v. Madison, 9 id. 402; Jenkins v. Rock Co. 15 id. 11; Liebermann v. Milwaukee, 89 id. 336; Saunderson v. Herman, 95 id. 48; Kneeland v. Milwaukee, 18 id. 411; Wells v. Burnham, 20 id. 112 (as to special assessments), distinguished. Wells v. Western Paving & Supply Co. 122, 123 22. Noall v. Halonen, 84 Wis. 402. See No. 10. 23. Perrin v. New London, 67 Wis. 416 (as to aid to railroad), distinguished. State ex rel. M., T. & W. R. Co. v. Tomahawk Common Council, 74,88 24. Reed v. Jones, 15 Wis. 40 (as to evidence based on account books), explained and followed. F. Dohmen Co. v. Niagara F. Ins. Co. 47 25. Rork v. Smith, 55 Wis. 67. See No. 21. 26. Saunderson v. Herman, 95 Wis. 48. See No. 21. 27. Vilas v. McDonough Mfg. Co. 91 Wis. 607 (as to priority of liens), followed. J. B. Alfree Mfg. Co. v. Henry, 28. Watkins v. Zwietusch, 47 Wis. 513. See No. 21. 327, 333 29. Webber v. Quaw, 46 Wis. 118: McArthur v. G. B. & M. C. Co. 34 id. 139 (as to assignment of cause of action), distinguished. Farwell Co. v. Wolf, 30. Wells v. Burnham, 20 Wis. 112. See No. 21. CERTIFICATES OF DEPOSIT. See CRIMINAL LAW, 1, 2. CHANGE OF VENUE. John V. 17 1. Under sec. 2622, R. S., the venue of an action cannot be changed, without the consent of the court having jurisdiction, by any mere stipulation of the parties; and the appearance of the parties and a trial without objection in the court to which the cause is so attempted to be removed is not a waiver of the want of jurisdiction in that court. Swan v. Porter, 34 2. An order for a change of venue, though made pursuant to a stipulation of the parties, is vacated, under sec. 2627, R. S., unless the papers are transmitted within twenty days. F. Dohmen Co. v. Niagara Fire Ins. Co. 38 3. A motion in such a case that the clerk be directed to transmit the papers, made after the expiration of the twenty days, not on any ground appealing to the discretion of the court, but on the theory that the order for the change was still in force, could not be treated as a motion for an extension of the time for transmission. CHARGING THE JURY. See INSTRUCTIONS TO JURY. CHATTEL MORTGAGES. See FIXTURES, 1. CIRCUIT COURT. See COURTS. CITIES. See MUNICIPAL CORPORATIONS. CLAIMS. Against cities. See MUNICIPAL CORPORATIONS, 9. Against estates of decedents. See COURTS, 2, 3. PARTNERSHIP. CO-EMPLOYEES. See RAILROADS, 20. COMMON CARRIERS. COMMON SCHOOLS. See LIENS, 10-14. RAILROADS, 6-15. See PUBLIC SCHOOLS. CONDITIONAL SALE. See AGENCY, 5. Ibid. CONDITIONS precedent. See CONTRACTS, 4. GUARANTY, 1. TAXATION, 1, 3, 4. CONDONATION of breach of duty. See MASTER AND SERVANT, 2. CONSENT of parties. See APPEAL, 4. CHANGE OF VENUE, 1. CONSIDERATION. See CONTRACTS, 1-3. RAILROADS, 2. CONSPIRACY. See ACTION, 1. DAMAGES, 1. CONSTITUTIONAL LAW. See COURTS. GAMBLING. LIENS, 11. MUNICIPAL CORPORATIONS, 1-6. WRIT OF ERROR. |