#### Ellis, Appellant, vs. Barron County, Respondent.

*January 12*

February *2, 1904.*

*iAppeal and error: Orders: Judgments: Limitation on time within-which appeal can he taken: Practice: Aggrieved party: Dismissal of appeal: Discretionary orders: Review: Supreme-court.*

1. An order dismissing an appeal to the circuit court from the-action of a county board disallowing a claim against the county, is not, in effect, a judgment, and hence an appeal from such an order, taken less than two years hut more than thirty days after service of a copy, together with a written notice of' its entry, is not taken within the time limited hy sec. 3042,, Stats. 1898, regulating the time within which appeals may he taken directly from orders.

2. Plaintiff having appealed to the circuit court from the action of the county hoard disallowing his claim filed against the-county, gave an undertaking, substantially the same as one-given in another case between the same parties, which the-supreme court had held was such a compliance with the statutory requirements as gave"the circuit court jurisdiction. Om the hearing of a motion, addressed to the circuit court, to dismiss the appeal for defects in the undertaking, plaintiff asked leave to amend, and appealed from an order refusing such application. *Held,*that the undertaking being sufficient, the-plaintiff was in no sense aggrieved hy the order refusing his-application to amend, and hence his appeal from such order should he dismissed.

3. Under sec. 3042, Stats. 1898, declaring that time within which an appeal may he taken directly from an order is limited to-*391thirty days from the date of the service hy either party upon the other of a copy of such order, with a written notice of the entry of the same, the thirty days’ limitation does not commence to run against the one party until the other has served the notice therein prescribed, notwithstanding there is service of such order and exception to its entry.

4. When a trial court has, in the exercise of its discretion, power to do or not do a certain act, a refusal to exercise such discretion upon the expressed assumption that it has no such power is an *error of law,*which eliminates from the case the ques- ' tion whether there was any abuse of discretion.

5. In such case, the supreme court, on appeal, will not consider the merits of the question thus addressed to the sound discretion of the trial court.

Appeal from orders of the circuit court for Barron county: A. J. Vinje, Circuit Judge.

*Appeal from two orders dismissedj one order reversed.*

This is an appeal from three orders, made under the following circumstances, and which for convenience are numbered consecutively 1, 2, and 3. May 12, 1899, the plaintiff filed a claim against the defendant county to recover hack money paid for taxes. November 1G, 1899, such claim was wholly disallowed hy the county board. Eebruary 10, 1900, the plaintiff served notice of appeal from such disallowance, with an undertaking. In April, 1900, the defendant moved to dismiss such appeal on the ground that such undertaking was not equivalent to the “bond” required by sec. 683, Stats. 1898, and particularly that the undertaking did not ran “to *Barron county ”*and hence that the court had no jurisdiction. Thereupon, and before the decision of such motion, the plaintiff moved to amend such undertaking by inserting “to *Barron county"*after the word “costs,” or to file a new bond. April 11, 1901, the court made an order (No. 1) refusing to allow such amendment or the filing of a new bond for the “sole reason,” as therein stated, that the court had “no power” to do so. At the same time — April 11, 1901, the court made another order (No. 2) dismissing the *392appeal. March 28, 1902, tie plaintiff gave notice of motion to reinstate the appeal, which motion Avas Toy Avritten order (No. 3) denied April 9, 1902, for Avant of “pOAver or authority to grant” the same.- March 28, 1903, the plaintiff by one notice appealed from all of the three orders — No. 1, refusing to amend the undertaking; No. 2, dismissing the appeal; No. 3, refusing to reinstate the appeal.

The cause Avas submitted for the appellant on the brief of *J. F. Ellis,*and for the respondent on that of *J.*IF. *Soder-*berg, district attorney.

Cacsoday, C. J.

1. At the time of making the two orders (Nos. 1 and 2) of April 11, 1901, the court made two other similar orders in another case betAVeen these same parties, from which the plaintiff appealed to this court. *Ellis v. Barron Co.*111 Wis. 576, 87 N. W. 552. That case was decided in this court October 15, 1901, and it was held, in effect, 'that the undertaking given by the plaintiff on the appeal from the county board was a substantial compliance Avith sec. 683, Stats. 1898, and hence that the circuit court had jurisdiction of the appeal; and accordingly reversed the order dismissing the appeal. Id. The undertaking on the appeal from the county board in this case is substantially the same as the.undertaking in that case, Avhich is printed in full on page 577, 111 Wis., 87 N. W. 552. If the appeal from the order (No. 2) dismissing the appeal from the county board were before us on the merits, then that decision would necessarily be controlling. But, as indicated/ the appeal from that order Avas not taken until nearly two years after the order was made, The statute declares:

> “The time within which an appeal may be taken directly from an order is . . . limited to thirty days from the date of the service by either party upon the other of a copy of such order, with a written notice of the entry of the same.” Fee. 3042, Stats. 1898..

*393It appears from tbe records that a copy of that.order, with a written notice of the making and the filing and the entry of the same of record in the office of the clerk of the court was duly served upon the plaintiff’s attorney August 8, 1901. Thus is appears that the appeal from that order was not taken within the time so limited by the statute quoted, nor until more than a year and a half after the service of such notice. The plaintiff seeks7 to escape such limitation by claiming that such order dismissing the appeal was, in effect, a judgment; and hence that he had two years within which to appeal therefrom. Sec. 3039, Stats. 1898. Rut “a judgment is” defined by the statute to be “the final determination of the rights of the parties in the action.” Sec. 2882, Id. It is essentially different from such order dismissing such appeal, which this court has'repeatedly characterized as an order from which an appeal may be taken under sec. 3069, Id.; *Mason v.*Ashland, 98 Wis. 540, 74 N. W. 357; *Gutta Percha & R. Mfg. Co. v.*Ashland, 100 Wis. 236, 75 N. W. 1007; *Finlay v.*Prescott, 104 Wis. 614, 616, 80 N. W. 930; *Milwaukee E. R. & L. Co. v. Bradley,*108 Wis. 467, 479, 84 N. W. 870. We must hold that such order so dismissing the appeal was not, in effect, a judgment, and hence that the appeal from it was not taken within the time limited by statute.

2. We fail to find in the record any evidence of the service upon the plaintiff or his attorney of any copy of the order refusing to allow the undertaking to be amended or a new bond filed in place of it, much less any written notice of the entry of such order as prescribed by the section of the statute quoted. This being so, there was nothing to prevent an appeal from that order in case it was appealable. As indicated in the former case, the undertaking was held to be a substantial compliance with sec.'683 of the statute, and sufficient to give the circuit court jurisdiction. *Ellis v. Barron Co. 1*11 Wis. 581, 87 N. W. 554. By reason of that *394being so, it was said in that case that it was “unnecessary to consider tbe appeal from tibe order refusing to allow the plaintiff to amend tlie undertaking.” That was on the theory that, the undertaking being sufficient, the refusal of the court to allow an amendment to it was wholly immaterial. The statute only authorizes a judgment or order to be “reviewed upon an appeal by any party aggrieved.” Sec. 3048, Stats. 1898; *McGregor v.*Pearson, 51 Wis. 122, 8 N. W. 101; *Day v.*Buckingham, 87 Wis. 219, 58 N. W. 254; *Bragg v.*Blewett, 99 Wis. 348, 74 N. W. 807; *Hogan v. La Crosse,*104 Wis. 107, 80 N. W. 105. The plaintiff was in no sense aggrieved by the order refusing his application to amend his undertaking, which was so held to be perfectly good.

3. The motion of the plaintiff of March 28, 1902, to reinstate the appeal from the county board was based upon the record and affidavits of the plaintiff and his attorney, to the effect that the record in this case, except as to the amount involved, was “identical in all respects” with the record in *Ellis v. Barron Co.*111 Wis. 576, 87 N. W. 552; that it was understood and agreed orally by and between the attorneys of the respective parties at the time of making such orders,. April 11, 4901, that one appeal to this court would be decisive of both cases, and hence that it was only necessary to take an appeal in one case, and that the other case should abide by the result of the decision in the case which should be appealed; but that the attorney for the defendant declined to abide by such oral stipulation after the decision in this court. In opposition to such motion, and at the time of the hearing, the only attorney for the defendant filed his affidavit to the effect “that he never in any way, shape, or manner stipulated or agreed with the plaintiff’s attorney, or any one else, that this action should abide the result of the like action which was” so appealed to this court, and that he “never had the slightest hint of such an understanding until” after such decision was made. On hearing such motion to rein*395state tbe appeal tbe trial court, on April 9, 1902, “ordered that tbe said motion be, and tbe same hereby is, denied on tbe ground that tbe court bas *no power or authority*to grant said motion, or to reinstate said ■appeal at a term subsequent to tbe term at wbicb said order of dismissal was entered.” It appears from tbe record tbat tbe plaintiffs attorney excepted to tbat order at tbe time it was made, and admitted service thereof April 10, 1902; but we find no evidence in tbe record tbat any “written notice of tbe entry of” tbat order was ever served as prescribed in tbe section of tbe statute quoted. Sec. 3042, Stats. 1898. This court bas repeatedly held tbat it is only after tbe service of such notice tbat tbe statutory limitation mentioned in tbat section begins to run. *Corwith v. State Bank of*Illinois, 18 Wis. 560; *Couldren v. Caughey,*29 Wis. 317; *Orton v.*Noonan, 32 Wis. 220; *Rosenkrans v.*Kline, 42 Wis. 558. Tbe facts are tbe same ■here as in the last case cited, in which it was held:

> “It is only after *written notice of the entry*of an order tbat the statutory limitation of tbe time for appealing therefrom begins to run, and tbe facts tbat tbe orde#was served upon appellant’s attorney and tbat be filed exceptions thereto do not take the case out of tbe rule.” See, also, *Fatt v.*Fatt, 78 Wis. 633, 48 N. W. 52; *Levine v.*Barrett, 83 Minn 145, 85 N. W. 942, 87 N. W. 847.

Tbe theory of tbe statute and these adjudications is tbat tbe thirty-days limitation therein mentioned does not commence running against tbe one party until the other party has manifested an intention to set it in motion by serving tbe notice therein prescribed. Tbat was not done as to tbe order in question, and hence tbe plaintiff was not barred from appealing therefrom.

4. Tbe motion to reinstate tbe appeal was denied upon tbe express ground tbat tbe court bad “no power or authority to-grant” tbe motion at a subsequent term. Tbe motion was made and tbe order entered within a year after tbe order *396dismissing tbe appeal. Tbe motion was obviously addressed to tbe discretion of the trial court, *to he*exercised as prescribed by tbe statute. Sec. 2832, Stats. 1898. It could only be granted, if at all, “upon sucb terms” as that court, in its discretion, might deem to be just and equitable. *Behl v. Schuette,*95 Wis. 441, 70 N. W. 559; *Mullen v. Reinig,*68 Wis. 408, 32 N. W. 293; *Port Huron E. & T. Co. v. Clements,*113 Wis. 249, 257, 258, 89 N. W. 160. Tbe adjudications upon tbe subject are numerous, and may be found in tbe notes to the section. See, also, *Buchan v. Nelson,*114 Wis. 234, 90 N. W. 114; *Platt v. Schmidt,*115 Wis. 394, 398, 399, 91 N. W. 992. Tbe trial court refused to exercise sucb discretion for want of “power or authority” to grant the motion.. Tbe question presented was whether tbe oral stipulation between tbe attorneys' of tbe respective parties was ever in fact made, as claimed on tbe part of tbe plaintiff; and, if so, whether tbe plaintiff relied upon sucb oral stipulation, and thereby made a case of “excusable neglect,” entitling him to relief under tbe section of tbe statute cited. *Heinemann v. Le Clair,*82 Wis. 135, 51 N. W. 1101. Sucb refusal of tbe trial court to exercise sucb discretion and determine sucb questions was clearly an error of law. Thus it was held by this court many years ago:

> “Where a trial court has, in tbe exercise of a sound discretion in a given case, power to do or not to do a certain act, a refusal to exercise sucb discretion upon tbe expressed assumption that it has no sucb power is an *error of law,*which •eliminates from tbe case the question whether *there*was any abuse of discretion.” *Smith v. Dragert,*61 Wis. 222, 21 N. W. 46, and cases there cited; *Whitham v. Mappes,*89 Wis. 671, 62 N. W. 430; *Binder v. McDonald,*106 Wis. 332, 82 N. W. 156.

This makes it unnecessary to consider the merits of tbe questions thus addressed'to tbe sound discretion of the trial court, but which that court refused to: determine for want •of “power or authority.” Certainly that court is in a much *397better position to determine tlie truth of the conflicting claims of tbe parties than this court. Tbe notice of appeal embraces three orders. But one bill of costs will be taxed in this court,, and that will be in favor of the plaintiff. *Ellis v. Barron Co.*111 Wis. 581, 87 N. W. 552, and authorities there cited.

*By ihe Oourt.*— The appeals from tho two orders of April 11, 1901, are both dismissed, and the appeal from the order of April 9, 1902, refusing to reinstate the appeal from the-county board, is reversed, and the .cause is remanded for further proceedings' according to law.