
    Oelberman and others, Appellants, vs. Newman and others, Respondents. Ryecraft, Appellant, vs. Newman and others, Respondents.
    
      September 27
    
    
      October 25, 1892.
    
    
      Appeal: Death of trial judge before settlement of bill of exceptions: Dismissal: Costs.
    
    1. Where the appellant is unable to procure the settlement of a bill of exceptions because of the death of the trial judge, he will be allowed to dismiss his appeal for the purpose of moving for a new trial, without regard to the probable or even necessary result of such motion.
    2. Costs will be allowed upon such dismissal. Sueterlee v. Sir, 25 Wis. 357, distinguished.
    APPEALS from the Superior Court of Milwaukee County.
    N. S. Robinson, for the appellants.
    
      E. P. Vilas, for the respondents.
   Lyon, C. J.

By reason of the death of Judge Gilsou of the superior court the appellants are unable to procure the settlement of bills of exceptions in these causes. They therefore ask leave to dismiss their appeals, to the end that they may apply to the superior court for new trials. The motions are resisted by the respondents on the ground that new trials must be refused if applied for. We have no concern with that question. No good reason is perceived why the appellants should not be permitted to place themselves in a position to move for such new trials, without regard to the probable or even necessary results of the motions.

But the court is asked to grant these motions without allowing costs in the judgments of dismissal. We are referred to the case of Sueterlee v. Sir, 25 Wis. 357, as authority for denying costs. When the appeal was perfected in that case the record failed to show any valid service of the summons, and hence failed to show that the court had any jurisdiction of the defendant,— he not having appeared in the action. Afterwards the circuit court properly allowed proofs of sufficient service of the summons to be filed. It is said in the opinion that, had the appellant asked leave to dismiss his appeal, after the record was thus perfected in this court, without costs, such leave would have been granted. However, no such leave was asked. The case amounts to little more than an intimation that, if the respondent would avail himself in this court of the amendment made in the circuit court after the appeal was taken, he would be required to submit to the terms that the appellant might dismiss his appeal without costs. In these cases there have been no amendments of the records. The appellants are in this court' without bills of exceptions, and seek to withdraw therefrom without being compelled further to prosecute hopeless appeals to judgment and defeat. There is no similarity between these cases and that of Sueterlee v. Sir, 25 Wis. 357.

By the Court.— Judgment of dismissal will be entered in each action, with costs.  