State ex rel. Mitchell v. Johnson

The statute (sec. 3072, Stats.-1898) is an imperative and mandatory one, and commands that if the defeated party, upon a reversal and direction by this court of a new trial, shall fail to pay the costs upon such reversal, to procure the record in said cause to be remitted to the trial court, or to bring the case to trial within one year after such reversal, unless the same be continued for cause, the complaint shall be dismissed. If each of these three steps are not complied with, the statute must be obeyed. “ Lex ita scripta est.” Christianson v. Pioneer F. Co. 101 Wis. 343, 346.

Doubtless the prevailing appellant may waive any or all of these requirements, but waiver should not be predicated upon ambiguous acts, which fail to evince such an intention on his part or which have not misled the other party into nonaction. It is contended here that such waiver was accomplished by the consent that the case should not be taken up for trial earlier than the 2d of November, 1898,— a day beyond the year. This consent was given some twenty days before the year had expired. What efficacy it may have had to waive the requirement that the action be brought to trial within the year we need not decide. It clearly cannot establish a waiver of the requirement that the costs be paid according to statutory requirement. It was in no wise in*93consistent with relator’s expectation that the plaintiff, Conway, would, within the ensuing twenty days, pay the costs, without which he could not have gone to trial against the proper objection of this relator. Christianson v. Pioneer F. Co., supra. Neither the plaintiff nor his attorneys could have reasonably so interpreted that consent, or been misled into the assumption that the relator did not purpose to insist on performance of the plaintiff’s statutory duty to pay the costs within the time prescribed. No similarity in principle exists between this situation and that presented in Whereatt v. Ellis, 85 Wis. 340, or Raymond v. Keseberg, 98 Wis. 317, in both of which the party entitled to insist on the dismissal took various proceedings inconsistent with standing on his rights, under sec. 3072, Stats. 1898, and especially in the last of which he accepted the payment of the costs after the expiration of the year. The circuit court should have granted the motion to dismiss made November 1, 1898, after the expiration of the year, when it was conceded that the costs had not been paid. His refusal thereof was disobedience of a mandatory and imperative statute, leaving him no discretion. The contrary construction,- adopted by the circuit judge, sincerely we have no doubt, is not the correct one.

There remains only the question whether a proper case is here presented for this court to interfere by writ of mandamus, instead of relegating the relator to its revisory and appellate jurisdiction, within the limits suggested by State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, and State ex rel. Meggett v. O' Neill, 104 Wis. 227.

The order denying the motion to dismiss is not appeal-able. Raymond v. Keseberg, supra. It can be reviewed only after a trial and rendition of judgment in favor of the plaintiff. From the record of the case of Conway v. Mitchell, 97 Wis. 290, as already considered by this court, it is apparent that the trial would be burdensome and expensive, of course more so now than when it was first tried in 1896, by reason *94of the lapse of time and fading memory, if not disappearance, of witnesses. Ve cannot but think, where the right of the relator and the duty of the court are prescribed in express terms by a mandatory statute, and the inconvenience, expense, and difficulties to be suffered by the relator before the action of the court can be reviewed on appeal are so great, that it is entirely proper to adopt and act upon the more summary process of mandamus. State ex rel. Brownell v. McArthur, 13 Wis. 407; State ex rel. Spence v. Dick, 103 Wis. 407.

By the Coivrt.— It is adjudged that peremptory writ of mandamus issue.