
    Walsh vs. Dart.
    Where, within a year after the reversal of a judgment and an order for a new trial were entered in this court, thermitUPur was transmitted to the court below and a commission there issued to take testimony in the cause, and return made thereto: Held, that this was sufficient to take the case out of the operation of ch. 181, Laws of 1859,
    APPEAL from the Circuit Court for Marquette County.
    This court having on the 19th of November, 1861, reversed a judgment for the plaintiff in this cause, and awarded a venire de novo, the record was transmitted to the circuit court in De-comber following. This appeal was taken by the plaintiff from an order dismissing the cause on the ground that it “ was not noticed for trial, nor were there any proceedings had” in the cause within one year from said 19th of November, “ except that a commission was issued by the plaintiff to take the deposition of witnesses within such year.” The return to said commission is dated September 17th, 1862, but the printed ease does not show when it was filed in the circuit court.
    
      Jno. 0. Truesdell, for appellant.
    
      Wheeler & Kimball, for respondent.
   By the Gourt,

Downer, J.

This is an appeal from an order dismissing the action, as it is claimed, pursuant to the provisions of chap. 131, Laws of 1859, which provides, in substance, that proceedings shall be had in the court below and the record transmitted to that court within a year from the time a new trial or other proceedings shall be ordered by the supreme court. The circuit court, because no proceedings had been had within the year except issuing a commission to take depositions, dismissed the action. It appears that the commission was issued and returned, with important evidence on the part of the plaintiff below, within the year. We think that all that is necessary to save the action from the operation of the statute is, that the remittitur should be filed or transmited to the circuit court, and some step or steps taken preparing the action for trial within the year. The taking of depositions on commission issued was such a step or steps.

The order of the circuit court is reversed, with costs.  