(C.) Arrest of Judgment.

1. Where there is a special finding of facts upon which defendant is entitled
to judgment notwithstanding a general verdict for plaintiff, the latter is
not injured by an order of the court merely arresting judgment for him
on the general verdict, even if it is irregular to arrest judgment in a
civil action, under the code. Lemke v. Ch. M. & St. P. R'y Co., 449

2. An order arresting judgment in plaintiff's favor held not appealable where
it appeared that plaintiff was not entitled to such judgment.

(D.) Presumptions to Sustain Judgment.

See APPEAL (C.), 4, 12, 15.

(E.) Vacating Judgment.

See JURISDICTION (C.), III, 4.

I. In Trial Court.

Ibid.

1. Upon a complaint for a strict foreclosure of a contract for the purchase of
land of which plaintiff claimed to have the legal title, judgment was
rendered in default of an answer, requiring defendant to pay the contract
price, with interest, etc., within fifteen days, or, in default thereof, bar-
ring his rights. Upon affidavits excusing his default, defendant moved
at the next term to set aside the judgment, and for leave to file an an-
swer alleging that on the day of the date of said land contract, and for
a long time previous, he was the owner of said land; that on that day
he borrowed of the plaintiff the sum named in said contract, and, to
secure payment of the same, executed and delivered to the plaintiff a
deed of said land, and took from him the contract in question; that he
was then a married man, said land was his homestead, and his wife did
not execute or assent to his said deed, for which reason it was void; and
that he had paid fifty dollars interest not allowed in the judgment. The
court granted the motion on condition that defendant, within ninety
days, deposit with the clerk for plaintiff the principal sum admitted by
the answer to be due, with interest from the date of the contract, fifty
dollars not to be paid by the clerk to the plaintiff until the further order
of the court relative thereto, made after the final hearing of the action.
On appeal by the defendant, Held,

(1) That the order should be so far modified as not to require defendant
to deposit the fifty dollars alleged to have been paid.

(2) That if the facts stated in the answer are true, the deed and con-
tract therein mentioned probably constitute a mortgage, upon the fore-
closure of which the mortgagor would have a year to redeem from the
sale; and the order should therefore be so modified as to give defendant
a year for making his payment.

(3) That as the defense set up in the proposed answer affects the va-
lidity of the instruments as a security, the court did not err in requiring
the defendant, as a condition of opening the judgment, to pay the sum
admitted to be due. Hanson v. Michelson, 19 Wis., 499, distinguished.
Magoon v. Callahan,

141

2. Defendant testifies that he gave the summons served on him herein to his
attorney to defend the action, while the attorney testifies that defendant
did not deliver to him such summons, but gave him to understand that
none had been served. It appears, however, that defendant paid no

attention to the action for some eighteen months, until served with an
order to show cause why judgment should not be rendered against him;
that he then gave such order to his attorney to attend to it; but neither
he nor his attorney paid any further attention to the subject until execu-
tion had issued. Held, that the court below did not abuse its discretion
in refusing to set aside the judgment; the defendant's neglect not being
excusable. Grootemaat v. Tebel,

II. In Supreme Court.

576

1. The rule of law governing all the courts of this state, including the supreme
court, is, that as to all matters on which the mind of the court did act,
or is presumed from the record to have acted, in the rendition of a judg-
ment, it is precluded from altering its decision at a subsequent term, ex-
cept as authorized by statute or by general rules of practice established
by this court, having statutory force. Pringie v. Dunn et al.,

435

2. The provision of sec. 38, ch. 125, R. S., empowering courts, at any time
within one year after notice thereof, to relieve a party from a judgment
rendered against him through his mistake, excusable neglect, etc., has
no application to judgments of this court on appeals.

Ibid.

3. This court has no power to review its own judgments on appeals after the
term at which they are rendered, unless the power is carried over to a
subsequent term by motion for rehearing actually made within the rule,
and brought to a hearing within the term at which it is made. But this
does not prevent the correction of mere mistakes in the entry of judg-
Ibid.

ment.

4. Under ch. 264 of 1860-which requires the clerk of this court to remit ap-
peal papers to the court below within thirty days after judgment here on
the appeal, unless this court directs them to be retained for the purpose
of a motion for a rehearing, jurisdiction here of an appeal ceases when
the papers are so remitted; and it ceases at the end of the thirty days,
even when the record is not actually remitted, unless it is retained here
by order of the court under the statute.
Ibid.

(F.) Reversal of Judgment.

See ADMINISTRATORS, etc., 3. APPEAL (C.), 16, 17. BILLS AND NOTES,
6. CONSTITUTIONAL LAW, 13. CONTRACTS, 8 (3). EVIDENCE, 7. IN-
FANCY, 5. NEW TRIAL. SALES (A.), 6, 7. ́ VARIANCE.

1. Where the complaint states a cause of action, and there was evidence
tending to prove its material averments, the verdict will not be disturbed
by this court, although there was a preponderance of evidence against it.
Oleson v. Flom,
75

2. A judgment will not be reversed for inaccuracies in the instructions given,
by which the appellant could not have been injured.
Ibid.
3. Where, upon an admissible theory of the case, the verdict is supported by
the evidence, it will not be disturbed. Merrill et al. v. Nightingale et al.,
247
4. An error in admitting evidence tending to show that there was no consid-
eration for an instrument sued on, is immaterial where the jury find the
instrument a forgery. Menk v. Steinfort,

370

5. An erroneous ruling that the husband could not testify to acts done by
him as the wife's agent when she was present, is immaterial where it ap-
pears that he was offered as a witness generally in the cause, and not
specially as to matters in which he had acted as her agent.
Ibid.

384

6. A judgment will not be reversed for an error in the charge which was im-
mediately and fully corrected.
Ibid.
7. A judgment will not be reversed because some proposition in the judge's
charge to the jury was not strictly accurate, if upon the whole charge
the jury could not have been misled as to the law applicable to the case
presented by the appellant's evidence. Scheike v. Johnson et al.,
8. Although the law was correctly given to the jury in this case, the judg-
ment must be reversed for the rejection of material evidence bearing
on the question of fact. Meyer et al. v. Hanchett,
419
9. Where the undisputed evidence in a case would justify a direction to the
jury to find for defendant, plaintiff cannot be injured by erroneous in-
structions. Andrews, Ex'trix, v. Jenkins et al.,

476
10. A judgment will not be reversed for a casual remark of the judge to the
jury, which, even if inaccurate, had little importance in the case, and
could not have misled the jury. Kelly v. Berry et al.,

(G.) Relief against Judgment.

See EQUITY, 7, 8.

(H.) Action on Judgment.

See CONTRACTS, 12.

JUDICIAL NOTICE.

See EVIDENCE, 16.

669

JURISDICTION.

(A.) Of Supreme Court, in Appeals.

See APPEAL (C.), 13, 14. JUDGMENT (E.), II.

(B.) Of State and Federal Courts.

See BANKRUPTCY.

(C.) Of Circuit Courts.

See WAIVER, 2, 3.

I. In Divorce.

See DIVORCE, 4, 5, 9.

II. Over Judgments.

See JUDGMENT (E.), II, 1.

III. Of the Person.

1. Courts of record of this state, in actions upon contract, may obtain jurisdiction of a nonresident defendant, having property in this state, by service of summons by publication; but the statute providing for such service (R. S., ch. 124, sec. 10) must be strictly followed. Likens v. McCormick et al,,

313

2. After the order of publication in this case, a copy of summons and complaint was mailed to defendants, by their firm name, giving the initials only of their Christian names, which were known to the plaintiff. Held, (1) That if a copy had been so directed and mailed to each of them, it would have been a doubtful service. Kellam v. Toms, 38 Wis., 592. (2) That the mailing of one copy to both could operate at best, as service on one only, not affecting the other; and the uncertainty which, if either, might receive the copy so mailed, makes it prima facie void as to both. Ibid. 3. A subsequent personal service on one of the defendants, without this state, with no attempt to serve the other, was not a sufficient compliance with the statute. Ibid.

4. Judgment as upon default having been rendered against the defendants after the attempts at service above described, they were entitled to have it opened, for the irregularity.

(D.) Of Circuit Judge at Chambers.

See ARREST, 1. CONSTITUTIONAL LAW, 1, 2.

(E.) Of Justices' Courts.

See APPEAL (C.), 16, 17. RAILROADS, 1.

JUSTICES' COURTS.

See APPEAL (C.), 16, 17. RAILROADS, 1.

LACHES.

See EQUITY, 8. JUDGMENT (E.), I, 2.

LAND CONTRACT.

See EQUITY, 2-6. VENDOR AND PURCHASER.

LANDLORD AND TENANT.

Ibid.

See MINES, etc.

LIBEL.

1. In an action for libel, where it is uncertain what words charged mean, and to whom they refer, the complaint should contain averments showing their meaning and their reference to the plaintiff. Cary et al. v. Allen et al., 481

2. Words which have a direct tendency to injure a person in reputation, to degrade and disgrace him in society, and to bring him into public contempt and ridicule, are libelous.

Ibid.

3. Defendants, in a newspaper article, after stating the defalcation, frauds and disappearance of one H., said: "It is currently rumored that Mrs. B. [one of the plaintiffs] has gone with H., or has some connection with his disappearance. It is said that Mrs B. left shortly before H.'s departure, ostensibly for the purpose of visiting Washington, and since that time her family have telegraphed to her and for her repeatedly, but can receive no tidings whatever of her whereabouts. H. was known to have possession of considerable of her money at the time he absconded, and the fact of her leaving and subsequent reticence, coupled with this, has given rumors to the effect that they had concocted a scheme to meet at some appointed time and place, and have gone together. For the lady's sake it is but proper to give but little credence to such a suspicion, until further developments shall prove it well founded." Held, libelous. Ibid.

(A.) Upon Land.

I. Of Vendor.

See EQUITY, 4.

II. For Improvements.

See BETTERMENT ACT.

(B.) Upon Personalty.

LIEN.

I. On Goods sold by General Owner.

See SALES (A.), 1, 2.

II. Of Laborer upon Logs.

1. The statutes of 1860, 1862 and 1869, relating to liens upon logs for labor or services connected therewith, are valid; and where the laborer is not employed by the general owner of the logs, or of the land on which they are cut, but by a contractor under him, proceedings to enforce the lien are not invalid because such general owner is not made a party. Munger v. Lenroot, 32 Wis., 541, adhered to. Winslow et al. v. Urquhart, 260 2. A judgment for the plaintiff in such an action does not estop the general owner of the logs from denying the right of such plaintiff to a lien upon them, in replevin by such owner against the purchaser under the judg ment. Ibid.

3. In replevin for logs, where defendant claims under a judgment of a justice's court to enforce an alleged lien on the logs, which is regular on its face, such judgment must be held valid, unless the contrary affirmatively appears; and all reasonable presumptions consistent with the record will be made, to sustain it. Ibid.

4. The statute (Tay. Stats., 1768, § 25) gives to any person "that shall furnish any supplies, or that may do or perform any labor or services in cutting, falling, hauling, driving, running, rafting, booming, cribbing, or towing any logs or timber," a lien on them "for the amount due for such supplies, labor or services." Held, that these terms include an amount due under contract for cooking food for the men engaged in driving the logs. Ibid.

5. The affidavit for an attachment in this case, after stating the sum due plaintiff from defendant above all legal setoffs, adds, "that said indebt