#### Eisentraut, Administratrix, Respondent, vs. Cornelius and another, Appellants.

*October 25*

November *14, 1911.*

*Appeal: Reversal: Duty of plaintiff as to new trial: Dismissal of action.*

1. Where a judgment in plaintiffs favor was reversed and the cause remanded with directions to bring in other parties, frame issues, and reopen the case for the reception of further evidence and the making of findings, and plaintiff failed to bring the cause to trial or to obtain a continuance within one year after such reversal, the action was properly dismissed under sec. 3072, Stats. (Supp. 1906: Laws of 1905, ch. 365), although plaintiff did, within the year, file a petition to amend the complaint and bring in the additional parties.

2. A continuance for cause might have been applied for before the case was noticed for trial.

Appeal from a judgment of tbe circuit court for Clark county: A. H. Reid, Judge.

*Affirmed.*

*283For tbe appellants there was a brief by *F. E. Withrow,*attorney, and *Bunge & Bosshard*and *Arthur A. Mueller,*of counsel, and oral argument by *Geo. W. Bunge.*

For the respondent there was a brief by *Bturdevant ■& Farr,*and oral argument by *L. M. Bturdevant.*

Timlin, J.

On February 18, 1908, this court reversed a judgment in favor of the plaintiff in this case, and remanded the same with directions that the court proceed to bring in all the parties necessary to a complete determination or settlement of the questions involved, frame issues, and reopen the case for the reception of such other material evidence as might be produced and which was not introduced at the former trial, and thereafter to make its findings of fact. *Eisentraut v. Cornelius,*134 Wis. 532, 115 N. W. 142. The case remained in the files of this court until February 13, 1909, when it was remanded to the circuit court for' Clark county. Notice of *remittitur*was served February 13, 1909. On February 16, 1909, plaintiff filed a petition in the circuit court to amend nthe summons and complaint and bring in additional parties as directed by this court, and the court made an order to show cause thereon returnable March 8, 1909. The defendants thereupon petitioned the circuit court to dismiss the cause for the reason that the action had not been continued for cause or brought to trial within one year after its reversal as provided by sec. 3072, Stats. (1898). That statute as amended by ch. 365, Laws of 1905, provides as follows:

> “In every case in error or on appeal in which the supreme court shall order a new trial or further proceedings in the court below, the record shall be transmitted to such court and proceedings had thereon within one year from the date of such order in the supreme court, or in default thereof the action shall be dismissed, unless, upon good cause shown, the court shall otherwise order. It shall be the duty of the losing party in any action or proceeding when a judgment or order *284in bis favor in tbe court below is reversed by tbe supreme court on tbe appeal of tbe opposing party to pay tbe clerk’s fees on sucb reversal, procure tbe record in said cause to be remitted to tbe trial court and bring tbe cause to trial witbin one year after sucb reversal, unless tbe same be continued for cause, and if be fail so to do, bis action shall be dismissed.”

Tbe first sentence seems to impose tbe duty of procuring tbe transmission to tbe court below on tbe plaintiff, because tbe result of failure is tbat tbe action shall be dismissed unless, etc. Tbe second sentence appears to impose this duty on the losing party, who may or may not be tbe plaintiff, and for failure *“his action shall he dismissed.”*

In tbe instant case, however, tbe plaintiff and tbe losing party are tbe same. Tbe original judgment in her favor was reversed by tbe supreme court on tbe appeal of tbe opposing party, and tbe same seems to be witbin tbe letter of tbe statute. Tbat tbe appellant made a belated attempt to bring in new parties as required cannot avail her in tbe face of this statute, which requires either tbat there be a continuance for cause or tbat tbe action be brought to trial, and in default of both tbat tbe action be dismissed. Tbe statute is quite drastic, but so long as tbe legislature acting witbin its power sees fit to impose sucb laws it is our duty to obey and enforce them. *State ex rel. Mitchell v.*Johnson, 105 Wis. 90, 80 N. W. 1104; *Miami Co. Nat. Bank v.*Goldberg, 126 Wis. 432, 105 N. W. 816; *Sutton v.*C., *St. P., M. & O. R. Co.*114 Wis. 641, 91 N. W. 121.

Tbe appellant suggests tbat tbe cause could not be noticed for trial before tbe additional parties were brought in and could not be continued for cause until after it was noticed for trial. We consider these difficulties imaginary. There is no sucb obstacle in tbe way of an application for a continuance. *Sutton v.*Wegner, 72 Wis. 294, 39 N. W. 775; *Blair v.*Cary, 9 Wis. 543.

*By the Court.*— Judgment affirmed.

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