Harris v. Snyder, 113 Wis. 451.

on August 27, 1900. The proof of service seems to be sufficient to satisfy the statute, especially as the question was raised upon such order to show cause, and is uncontradicted. Sec. 2820, Stats. 1898. A different statute prescribes the proof for the service of a summons when made by any other person than the sheriff. Sec. 2642, Stats. 1898.

2. It is claimed that the order staying proceedings made by the circuit judge September 1, 1900, was improperly admitted in evidence, since it was not served until after the sheriff had refused to execute the process and had recalled his deputy from Foxboro. But, as indicated in the statement of facts, the sheriff sent the telegrams mentioned after he had been informed by the attorney for the defendants in the execution and the deputy clerk, in effect, that, before the execution had been issued, an appeal had been regularly taken to this court, and the undertaking mentioned had been given, and filed in the office of the clerk of the circuit court; and that, while the defendant was arranging for new security with the view of executing the writ the order staying proceeding was served upon him. Such knowledge having been brought home to the sheriff, it would seem that he was entitled to delay a reasonable length of time for investigation. Thus it was held by this court at an early day that "an officer having knowledge of a want of jurisdiction in a tribunal or officer issuing the process, persisting in its execution, would be liable." Sprague v. Birchard, 1 Wis. 457. So it has been held:

"But the officer will not be protected by such process if he have notice aliunde of some jurisdictional defect which renders the judgment void." Grace v. Mitchell, 31 Wis. 533. See Power v. Kindschi, 58 Wis. 541.

There are other cases holding that an officer is not protected by process regular on its face, if he has knowledge of a defect in the previous proceedings which renders such process void or voidable. See cases cited in the note, by Mr. Freeman, to

Harris v. Snyder, 113 Wis. 451.

Savacool v. Boughton, 21 Am. Dec. 201. Leachman v. Dougherty, 81 Ill. 324. Thus it has been recently held in Massachu

setts:

"Where a court has no jurisdiction of the subject-matter of the controversy, or over the persons of the parties, an officer who is informed of facts concerning the truth of which he can have no reasonable doubt, which show, as matter of law, that the court has no jurisdiction, proceeds at his peril in making an arrest in a civil process, although the want of jurisdiction does not appear on the face of the process." Tellefsen v. Fee, 168 Mass. 189.

Such adjudications are in harmony with the rulings of this court, although others may be found the other way. It is said by a standard text writer that:

"If a supersedeas issues, the sheriff need not question its propriety, except so far as to ascertain that the court had jurisdiction to grant it. The allowance of a writ of error operates as a supersedeas. After notice of such allowance, or of any other supersedeas, an officer who proceeds with the execution of the writ is a trespasser." 1 Freeman, Executions (3d ed.), § 105, and cases there cited.

This seems to be the undoubted law. If the appeal was perfected, and the undertaking was sufficient to stay proceedings on the judgment prior to the issue of the execution, then it operated as a supersedeas. In any event, the order of the circuit judge, when served upon the defendant, operated as a supersedeas. There was no error, therefore, in admitting that order in evidence.

3. But it is contended that the undertaking was insufficient to satisfy the requirement of the statute, which declares:

"If the judgment appealed from direct the sale or delivery of possession of real property, the execution of the same shall not be stayed, unless an undertaking be executed on the part of the appellant, by at least two sureties, in such sum as the court or the presiding judge thereof shall direct, to the effect" as therein stated. Sec. 3056, Stats. 1898.

Harris v. Snyder, 113 Wis. 451.

The particular claim is that the record fails to show that any such order was ever made, entered, or served, fixing the amount of such undertaking, as prescribed by that section. To stay proceedings, the amount named in the undertaking must be "in such sum as the court or the presiding judge thereof shall direct." But the statute also declares:

"Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order." Sec. 2812, Stats. 1898.

So the rules of the circuit court declare:

"All applications to the court for orders or judgments, whether ex parte or otherwise, shall be publicly announced by the attorney making the application, and the clerk shall enter a brief statement thereof, in his minute book, with the action of the court thereon; and no such order shall be operative unless such statement shall be then and there so entered." Sec. 9, Rule IV.

So it appears that the only way to so fix the amount was by written order or such brief statement entered in the minute book by the clerk, with the action of the court thereon. It will be observed that the affidavit of the attorney for John Finn et al., upon which the order to show cause was based, expressly stated that the court had fixed the amount of the bond on appeal to this court in order to stay execution at $600 on February 13, 1900, and that the notice of appeal and the requisite undertaking had been served on the clerk and the plaintiff's attorney and filed in the clerk's office some days before the execution had been issued. In other words, the order was based in part upon the action of the court over which the judge making the order presided, and of which he must, necessarily, have had knowledge as to whether the statement was true or false. If the judge had supposed that he never fixed the amount of the undertaking as stated, it is fair to assume that he never would have made the order requiring the plaintiff to show cause why the execution should not be set aside and vacated as having been issued without authority, and after

Harris v. Snyder, 113 Wis. 451.

the undertaking had been duly and regularly given, and the appeal to this court perfected. The only facts which the plaintiff was thus required to show, not within the knowledge of the presiding judge, was whether, after the amount was so fixed, the undertaking was in fact given, and the appeal perfected, before the execution was issued. That the judge was at liberty to thus act upon his own knowledge as to whether he so fixed the amount cannot be doubted. Jackman Will Case, 27 Wis. 409, 413; Lego v. Shaw, 38 Wis. 402; Schattschneider v. Johnson, 39 Wis. 387; Ross v. Hanchett, 52 Wis. 496, 497; Cartright v. Town of Belmont, 58 Wis. 376, 377; Challoner v. Boyington, 86 Wis. 219. But it may be said that the order to show cause was returnable some days after it was made, and that the record fails to show what, if anything, was done by the court upon the hearing. It is enough to say that, if the court was satisfied that the amount was so fixed, as required by statute, and the notice of appeal and undertaking were served and filed before the execution was issued, then, under the authorities cited, the notice of appeal and undertaking operated as a supersedeas, without any further order by the court. They operated to avoid and nullify the execution, which was manifestly issued by the deputy clerk inadvertently, and without knowing that the appeal had been taken and the undertaking filed. The undertaking substantially complied with the provision of the statute cited (sec. 3056).

4. It is claimed, however, that it fails to comply with the statute which prescribes the form of an undertaking for staying execution on a money judgment (sec. 3053). It is enough to say that no such cause of action was alleged in the complaint or litigated upon the trial.

By the Court.-The judgment of the circuit court is affirmed.

DODGE, J. Plaintiff has proved without dispute the rendition of a valid judgment entitling him to the possession of

Rylander v. Laursen, 113 Wis. 461.

certain premises; the issue of an execution in due form, commanding the sheriff to deliver such possession; also the delivery of such execution, that performance was within sheriff's ability, and that he refused to execute the writ, to plaintiff's pecuniary injury. This, it seems to me, makes a complete prima facie case for recovery of damages. The statute (sec. 725, Stats. 1898) imposes on the sheriff the duty to execute the writ. True, he may refuse if it be not valid, but its invalidity must be shown in order to excuse him. It carries with it, like all process of a court of record, presumption of regularity and validity. But one possible excuse is suggested for defendant's neglect to carry out the writ, namely, the service of a notice of appeal and stay bond; but, so far as the proof in the case went, that excuse was not proved at all. The undertaking filed was waste paper unless the amount thereof had been fixed by the court or judge (sec. 3056, Stats. 1898), of which no evidence is given; and yet the sheriff is held excused from executing the command of the court's writ, and plaintiff, with no fault of his, is deprived of his rights under the judgment. I cannot concur in a rule of law which thus emasculates both judgment and statute. In my opinion, defendant is liable for disobedience of the writ delivered to him, unless he proves its invalidity. I therefore dissent from the judgment of the court.

RYLANDER, Respondent, vs. LAURSEN, Appellant.

February 19-March 11, 1902.

Pleading: Counterclaim: Same transaction: Subject of the action.

1. Plaintiff alleged that defendant was the owner of a mill on plaintiff's land, and allowed fire to escape therefrom onto the land to plaintiff's damage. The affirmative parts of the answer set forth an alleged agreement with the plaintiff, by the terms