Year: 1861

AN ACT concerning proceedings in Courts in
! certain cases.


The People Of the State Of Wisconsin, represent


ed IN Senate and assembly, do enact as foztaaos:
| Section /. In any action now pending, or
| which shall hereafter be commenced in any


court in this State, to forclose any mortgage or
enforce any instrument or contract, made or Civ


an by any person or persons, to any corporation,
IN W hoie or IN part payment for subscription to


the capital stock Of such corporation, given III
payment of such capital stock, in whole or in


part, or made with or given to any person or er-


sons for the benefit OF such corporation, either IN
payment as aforesaid, or as security Tor such pay


ment, in which an issue of fact shall be Joined


according to the course of practice in said court
| 1t shall be the duty of the court in which such


action is or may be pending on the application
| of either party, to appoint some suitable and
| proper person to take all the testimony to be ta-
| ken in this State, which either party may desie


to give in such action, and all such testimony
which either party may desire to use on the trial


of such action, and the person so appointed to
| take testimony, shall take such testimony and


report the same to the court, together with the
| objections to questions propounded or testimony
! taken.


Sec. 2. Upon the filing of the report of such
| testimony, either party may, upon ten days no.
| tice of motion to The opposite party, move the


court to strike out or suppress any portion or the
whole of said testimony, and the court, upon
| nearing said motion, SHALL by order, sustain or


ONerTule bne same IN WlOle or III part, ana ellneT
| party may exceptin writing to said order with
! IN twenty days after service him of written
notice thereof; which exception shall be fled
| with the clerk of the court, and served on the
| opposite party. So much of the testimony re-
ported has not been or shall not be struck out


or suppressed as aforesaid, shall be read evil
dence on the trial of said issue or issues such
| report, order and exceptions shall form a part OF
| the record of the ease. and upon any appeal ia
! ken in said action, either before after final
/ nfrroa ant on n1Vri of prrT hrOl Or tn
| verse any final Judgment in said action, the
| same shall be considered by the supreme court
! the same as if Incorporated in bill of excep-
| tions or case made.


| Sec. 8. Either party may appeal to the su-
preme court from such order, by filing with the
clerk of the court where such order made,
and serving upon the opposite party, within the
time now by law provided for such an appeal,
notice in writing, specifying the order or the
part thereof appealed from, and such appeal
| shall be a stay of all proceedings in the action
in which said appeal is taken. in the court from


which the appeal is taken, until the appeal shall
be disposed Of and certified by the supreme court
back to the court below.


Sec. 4. ANY issue or issues of fact made or


joined in any action mentioned in this act, shall,
upon demand of either party, be tried by jury,
Pr0Uided such demand shall be made before the
reading of any testimony in said action on the
| trial thereof.


Sec. 5. In any such action as is mentioned in


this act, or in any action brought to enforce any
such instrument or contract in writing asls men


toned in this act, if the defendants, or either of


them, shall set up fraud in obtaining of the
| or want of consideration, such instrument shall
be deemed primG fdcie to be held and owned by
the plaintiff in such action, if owned at all with
full notice at the time said plaintiff obtained the
same of all equities existing between the original


parties thereto, and the oath of the plaintiff
shall not be deemed sufficient proof to remove
such presumptions.


Sec. 6. In any action mentioned in this act
| = L.
against tt e plaintiff, the judgment of the ecurt
shall be accordingly, and the plaintiff shall, in
said Judgment, be ordered and directed to sur
render the mortgage and note, or other instTu-
ment or contract on which such action may he
founded. to be cancelled, and Judgment shall also


be rendered in favor of the defendant or defend--
ants, the may be, for costs and before


said plaintiff shall prosecute any appeal there
from, he shall be required to file said note and


mortage, or otker instrument or contract in wri-
ting on which said action is founded, with the


clerk of said court, and shall pay all costs ad-


judged and taxed or taXable in said action. and


no appeal by said plaintiff shall be deemed per-


fected until such filing and payment.


See. Z. The person appointed to take testimo-


ny according to the provisions of this act, shall
have power to issue subp9nas and require the


attendance o. him bef0re any officer, agent, stock
holder, or employee, of any corporation created
by the laws of this State and of any person or
persons in this State. Such subpoena shall be in
the name of the State of Wisconsin, and shall
be in the form now used in the courts of record,
except that the same need not be signed by the
clerk, nor sealed with the seal of said cou t, and
may require the production of any record, book,
paper, or memorandum belonging to any rail
road company or other corporation or which ev-
er belonged TO any such railroad company or
other corporation, and any record, paper book,
memorandum, or statement in writing, made by
an officer. agent, director or employee of any
railroad compay other corporation in the due
course OF his business as such officer, agent, d


rector, employee, shall be held and taken to be
admission or statement by such company or
corporation, and valid and sufficient evidence as
against said company or corporation or person
seein" to recover upon such mortgage. ipstru-
ment or contrast OF the matters and things
therein stated, and when the same shall have
been properly proven, copies thereof duly certi-
fed to be such by such person appo nted to take
testimony, shall be attached as exhibits to said
report and be taken and read on the trial with
| the same effect as the original: Pr0UideG, how
ever, that If any person shall neglect or refuse
to appear and testify after having been sub Tena-
ed in this act provided, orif any officer, agent,
director, or employee, of any railroad company
or other corporation. shall neglect or refuse to
permit such examination of the records, papers,
books, memoranda, or statement in writing of
such railroad com pany or other corpo ration,


by this act, is authorized and required to be made
shall fail to procure the same, such person ap
pointed to take testimony aforesaid, shall re-
port such fact to the court before which the case


may then be pending, and such person, officer


agent, director, or employee, shall be deemed and
adiudg ged guilty of a contempt of court, and in


the discretion of the court shall be punished ac-
cordingly and the court shall compel he attend


ance of such person, officer, agent, director, or
employee, before the person appointed to take


testimony in this act provided; and until such


required testimony shall have been obtained, all


further proceedings in the case shall be stayed


unless such testimony shall be waived by the


party desrous of taking the same.


Sec. 5. All actions upon any note or mort


ga ge given for the purpose mentioned in this


act STALL be brought and tried in the county


where the morJgaged premises or part thereof


are situated whether such action is brought on


anv note or contract or on any mortgage given


for the security of such note or contract. provi-


ded that the person or persons contesting the va


lidity of such Instrument shall have Grange of


venue for the same causes, and on like terms as


are now provided by law for change of place of


trial in civil actions in courts of record and pro-


vided further, that for the purpose of this act


and for carrying into effect its provisions, the


holder of any mortgage or other instrument Civ


en- for the purposes in this act specified shall be


taken and deemed to be 6 Plaintiff and sub


iect to all the provisions of this act as plaintiff.


See g. The dispositions or testimony of wit
nesses residing out of this State, may be taken on


commission as by the law provided in othercases.


Sec. 10. In any action mentioned in this act.


if final Judgment shall be for the Plaintiff such


Judgment shall include all costs ordered or tar


able against the Defendant, and such Judgment


shall be q charge and lien upon the land or other


property upon which any mortgage sought to be


foreclosed, shall have been given, out such iudc-


ment shall be a charge or lien upon no other


property The defendant shall in no case be re-


ouired to pay cost on continuances or on appeal


until after the fual Judgment in such action,