McKe gue, Adm'x, etc. vs. The City of Janesville. cross-walk before the accident happened. The city charter provides that the "common council shall have control and power over and management of all streets, alleys, lanes, and public grounds in said city," etc. This language of the city charter gives to the common council the same general powers and control over the streets of the city that the general laws of the state give to the supervisors of towns over the roads in their respective towns. See sec. 1223, R. S. 1878. The aldermen, with the mayor, compose the common council of the city. In the case of Jaquish v. Ithaca, 36 Wis. 108, it was shown that notice of the defect in the highway had been given to the chairman of the town, who was one of the supervisors; and it was argued that such notice was not notice to the town. This court said: "Notice of the defect to that officer, who is one of the board charged by law with the care and superintendence of the highways and bridges in the town, is notice to the town; and if, thereafter, no proper precautions were taken in due time to guard against accidents by reason of such defects, the town is chargeable with negligence." The cases cited by the learned counsel for the respondent in their brief from other courts fully sustain the ruling of this court in the case of Jaquish v. Ithaca. Independent of the evidence that notice had been given to one of the aldermen of the city of the defect in question, there was abundance of evidence in the case tending to show that the defect had existed for such a length of time that the city would be presumed to have notice of its existence without proof of actual notice. 6. This objection is similar in its nature to the fourth, and the evidence objected to was competent as tending to show that the children had no means of support of their own, and so would be dependent upon their mother if she was living. 7. The objection to the annuity tables, as tending to prove the probable number of years the deceased would McKeigue, Adm'x, etc. vs. The City of Janesville. have lived if the accident had not happened, was not well taken. This court held, in Berg v. C., M. & St. P. R. Co. 50 Wis. 427, and Mulcairns v. Janesville, 67 Wis. 24, that these tables were admissible in a case of this kind, not as forming a legal basis upon which the jury might determine the probable length of life of the deceased, but as evidence which the jury might consider, with all the other evidence in the case upon that point. The eleventh error assigned upon the instruction to the jury on this question of the annuity tables cannot be sustained. The learned judge did not direct the jury to base their finding upon these tables alone, but to consider them with the other evidence in the case. Upon the propriety of admitting annuity tables in evidence in cases of this kind, see the case of Vicksburg & M. R. Co. v. Putnam, 118 U. S. 554, and cases cited in the opinion. 8. It is assigned as error that the court refused to give the following instruction to the jury: "If the deceased, Mrs. McKeigue, knew of the defect, its extent and nature, when she attempted to pass over the walk in question, the plaintiff cannot recover in any event, unless you find that the deceased was passing along the walk carefully, thoughtfully, and prudently, with the intent to avoid the danger which was in the way. And if the deceased, at the time she attempted to pass over the walk in question, knew the same was dangerous and that she could not pass the same without risk of injury, and if she could, at the same time, easily have passed around the dangerous place so as to have avoided all danger, she cannot recover in this action." We think this instruction was properly refused, in view of what the learned circuit judge had said to the jury upon that subject in his general charge. The instruction requested would seem to require the deceased to have exercised the care indicated in the instruction requested, if she knew generally of the defect, though at the time she may, on account of the McKeigue, Adm'x, etc. vs. The City of Janesville. storm and darkness or other causes, have not had it in mind when she undertook to cross over it. The last part of the instruction asked was, we think, properly refused under any circumstances. Even though there may have been some risk of injury in passing over the defective walk, and although she might easily have passed around the dangerous place, these facts alone, being conceded, did not, as a matter of law, entitle the defendant to a verdict. It would still be a question for the jury whether she was guilty of contribu tory negligence in passing over the defective walk. 9. It is said that the learned circuit judge so instructed the jury that he excluded from their consideration whether the street was in a reasonably safe condition, and instructed the jury that the city would be liable although the street in question was in a reasonably safe condition. After a careful reading of the instruction referred to by the learned counsel, we cannot find that such an instruction was given. The instruction referred to by the learned counsel in their brief commences with this statement: "While the duty rested upon the city to keep this cross-walk in a reasonably safe condition for public use by day and night," etc. If the learned counsel mean by this exception to the instructions that the cross-walk in question might be defective and wholly out of repair and unsafe for public travel, and yet the street as a whole be reasonably safe, we would be inclined to differ with them on that proposition; but, if such was the claim, it was their duty to have called the attention of the learned circuit judge to that proposition, and have asked some instruction conveying that idea to the jury, if they wished to rely upon it as a valid legal proposition. The tenth assignment of error raises the same question presented by the fifth. It was not error to instruct the jury that notice of the defect to one of the aldermen was notice to the city. The eleventh error was disposed of in `connection with the seventh; and the twelfth error assigned Whereatt vs. Ellis. was disposed of in connection with the eighth, and no further comment upon them is required here. Holding, as we do, that upon all the material questions of fact the verdict of the jury is sustained by the evidence, and that there are no errors in the admission or rejection of evidence, in the instructions to the jury, or in the general conduct of the trial, it follows that there was no error in refusing to grant a new trial. By the Court.-The judgment of the circuit court is affirmed. See note to this case in 31 N. W. Rep. 303.- REP. WHEREATT, Respondent, vs. ELLIS, Appellant. November 6, 1886 - February 1, 1887. (1,2) Judgment by default: Conditional order: Stay of proceedings: Appeal to S. C. (3) "Recovery of money only." (4) Interest: Pleading. (5) Vacating judgment: Terms: Discretion. (6) Appealable order. 1. The circuit court ordered that the answer be stricken out and that the plaintiff have judgment as upon default unless the defendant do certain things within a certain time. The defendant failed to comply with the conditions of the order, but, after the time limited for such compliance, appealed from the order. A stay of proceedings upon the order, pending the appeal, was afterwards granted by this court. The order was affirmed. Held, that upon the filing of the remittitur the plaintiff was entitled, at once and without notice or further order, to judgment as upon default, in pursuance of the original order. 2. This court having in such matters appellate jurisdiction only will not, on affirming such an order, give further time for the appellant to comply with its conditions, but will leave that matter to the discretion of the court having original jurisdiction. 8. Under subd. 1, sec. 2891, R. S., judgment may be entered by the clerk for the amount demanded in the complaint, in an action Whereatt vs. Ellis. arising on contract for the recovery of money only, although the damages are unliquidated. 4. Where the plaintiff was entitled to interest on the amount due him from the time of the commencement of the action, he may include such interest in a judgment taken by default, although the damages were unliquidated and the interest was not specifically demanded in the complaint. 5. The relieving of a party from a judgment against him, under sec. 2832, R. S., and the terms upon which such relief shall be granted, are within the discretion of the trial court, and this court will not interfere unless there has been a manifest abuse of discretion. 6. An appeal will not lie from an order made by a judge at chambers. APPEAL from the Circuit Court for Trempealeau County. The following statement of the case was prepared by Mr. Justice CASSODAY: This action was commenced February 24, 1883. The defendant's demurrer to the complaint on the ground of insufficiency was overruled by the trial court; and the order overruling the same was affirmed by this court. 58 Wis. 625. The cause being remitted to the trial court and issue joined, the defendant was required to give his deposition "otherwise than as a witness on the trial," at the instance of the plaintiff, as prescribed by secs. 4096, 4097, R. S.; ch. 194, Laws of 1882; ch. 321, Laws of 1885; and having refused to do so, and upon affidavit showing the facts, and upon an order to show cause to the contrary served on the defendant, the trial court, July 2, 1885, ordered, in effect, that the motion of the plaintiff to strike out the defendant's answer and to give judgment against him as upon default or failure of proof be granted and allowed; that said answer be, and the same was thereby, stricken out; that judgment be rendered and entered therein in favor of the plaintiff and against the defendant as upon default, pursuant to the statute, unless the defendant, within twenty days from the date of the service of a copy of the order upon him or his attorney herein, appear before S. W. McCaslin, |