
    Planer vs. Smith.
    Pbactiob. (1) Effect of permitting juror to be withdrawn. (2) When judgment of nonsuit in such case erroneous. (3, 4) Judgment on the merits, in such case, erroneous. (5, 6) Vacatihg Judgment. When order refusing to vacate not appealable.
    
    1. The withdrawal of a juror (-which the circuit court may permit in a proper case) operates to continue the cause, and does not of itself entitle the defendant to a judgment of any kind.
    2. Where a nonsuit is properly granted, the withdrawal of a juror as preliminary thereto is entirely superfluous and harmless; but if judgment of nonsuit be rendered merely because a juror has been withdrawn, it is erroneous.
    8. Where plaintiff, being surprised by testimony on defendant’s part, is per-mittecl to withdraw a juror, it is error to render a judgment against him on the merits, which bars another action for the same cause.
    4. Thus, in replevin, where plaintiff has possession of the property, a judgment against him, after he has withdrawn a juror, for the value of the property or for the return thereof to defendant, is erroneous.
    5. In such a case, a motion to vacate the judgment against the plaintiff for the value of the property and for costs, on the grounds that the order of the court had merely directed a return of the property to defendant and a judgment in Iris favor for the costs, and that there had never been any assessment of the value, goes only to the form of the judgment, and does not state valid grounds for vacating it altogether; and an order denying such a motion does not affect any substantial right, and is not appealable.
    6. An appeal from an order refusing to vacate a judgment cannot be made to perform the functions of a writ of error or an appeal from the judgment.
    APPEAL from tbe Circuit Court for Manitowoc County.
    Replevin, for a billiard table of tbe alleged value of three hundred dollars. Tbe property was replevied, and delivered to tbe plaintiff! Tbe complaint is in tbe usual form, alleging that tbe defendant wrongfully detains tbe property. Tbe answer is: 1. A general denial; 2. An averment that the property belongs to tbe defendant and bis copartner, one ELoebke. Tbe value of tbe property is admitted to be three hundred dollars, for which sum tbe defendant demanded judgment, but did not demand a return of tbe property.
    On the trial, tbe plaintiff was surprised by certain testimony on tbe part of tbe defendant, which he was then unable to rebut, and which, unrebutted, would probably have been, fatal to the action. Tbe court thereupon allowed him to. withdraw a juror; but, instead of continuing tbe cause to another term, or impaneling a jury at tbe same term for tbe trial thereof, tbe court gave judgment for tbe defendant, dismissing the complaint, and for the value of tbe property ($300) and costs of suit. The judgment is against tbe surety in tbe undertaking executed on tbe delivery of tbe property to tbe plaintiff, as well as against tbe plaintiff.
    
      At tbe same term, tbe plaintiff obtained an order to show canse wby tbe judgment should not be vacated, for tbe following reasons: 1. Tbat tbe only order for judgment ever made in tbe action “ was an order for tbe return of tbe property in suit, and for a judgment for costs;” whereas tbe. judgment entered “ was an absolute money judgment for $300, besides costs and disbursements.” 2. Tbat tbe judgment “was entered for $300 damages, purporting to be tbe amount assessed by tbe court as tbe valire of tbe property replevied, whereas it does not appear tbat any assessment of tbe value of said property was ever made by this court.” 3. Tbat no order bad ever been entered for judgment against tbe surety. Tbe surety did not join in tbe application, and has made no objection to tbe judgment.
    From an order refusing to vacate tbe judgment, tbe defendant appealed.
    Briefs were filed by Greene c& Wash for tbe appellant, and 3. G. & W. J. Tv/rner for tbe respondent. At tbe oral argument, DmicL Taylor appeared for tbe appellant, and W. F. Yilas for tbe respondent.
   Lyon, J.

Tbe power of tbe circuit court, in a proper case, to permit a juror to be withdrawn, or to order a nonsuit, is undoubted; but there is no necessary connection between tbe two processes. Tbe withdrawal of a juror operates to continue tbe cause, and does not of itself entitle tbe defendant to a judgment of any bind. If a nonsuit be properly granted, tbe withdrawal of a juror as preliminary thereto is entirely superfluous and harmless. But if judgment of nonsuit be rendered merely because a juror has been withdrawn, such judgment is founded upon a misapprehension of tbe' legal effect of withdrawing a juror, and is erroneous. 2 Tidd’s Pr.,. 862; 1 Arch. Pr., 282; Stodhart v. Johnson, 3 Term, 657; Sanderson v. Nestor, Ryan & M., 402; Everett v. Youells, 3 B. & A., 349; The People v. Olcott, 2 Johns. Cas., 301; Chandler v. Bicknell, 5 Cow., 30; The People v. Judges of New York, 8 id., 127; The People v. Ellis, 15 Wend., 371.

Tlie judgment before us is erroneous because it was evidently rendered on tlie theory that-judgment must necessarily follow tlie withdrawal of a juror. But were any judgment proper, it should only be a judgment of nonsuit, which, of course, would be no bar to another action for the same cause.

This, however, is an absolute judgment, disposing of the merits of the controversy, and it would be none the less so were it for the return of the property instead of being for the value thereof. In either form it would bar another action for the same property; and hence, in either form, would be erroneous.

The motion to vacate the judgment goes only to form. It fails to reach vital defects. It does not seek to avoid the judgment because none should have been rendered, nor to change it from a final judgment on the merits to one of non-suit. But, did the motion specify valid grounds for vacating the judgment, it would not avail the plaintiff on this appeal. It has often been held that an appeal from an order like that from which the present appeal was taken, cannot be made to perform the functions of a writ of error, or of an appeal from the judgment. Edwards v. Janesville, 14 Wis., 26, and cases cited.

We think the plaintiff has mistaken his remedy, and that the order from which this appeal was taken affects no substantial right of the plaintiff.

By the Cou/rt. — Appeal dismissed.  