(dissenting in part). I cannot agree with so much of the opinion as holds or intimates that Tradewell v. C. & N. W. R. Co. 150 Wis. 259, 136 N. W. 794, should be overruled. In that case it was established as a basis of the opinion that through mistake or inadvertence the value of the property was inserted in the bill of lading at about one tenth of its value. In other words, there was no agreement for a one-tenth valuation or any valuation less than the true value.
In my opinion the TradeweU Case is in harmony with the letter and spirit of the Carmack amendment to the Hepburn act and is not in conflict with the case at bar.
On February 4, 1919, the respondent moved for leave to open the default in moving for a rehearing and to make a motion for rehearing in the cause. The motion was argued by John B. Sanborn of Madison for the respondent and by R. N. Van Doren of Milwaukee for the appellant.
An order was entered allowing respondent’s attorney to file such motion for a rehearing, and it was further ordered that the record be retained in this court pending said motion.
*625Upon the motion as filed there were briefs by Arthur Goodrich of Antigo, attorney for the respondent, and by R. N. Van Doren of Milwaukee, attorney for the appellant; and a brief was also filed by H. C. Lust of Chicago as amicus curiae.
The following opinion was filed April 2, 1919:
Pee. Curiam.On February 4, 1919, the court entered an order opening the default and permitting the respondent to file a motion for rehearing. The appellant challenges the jurisdiction of the court to make such order.
When the motion for opening the default was brought to the attention of the court, and objection to the court’s jurisdiction was formally entered on the record, no discussion of the question was had nor was it considered by the court, and the application was granted without inquiry on the point suggested. If appellant’s contention is correct, then the court is without power and the order is ineffectual and a nullity. Sec. 3071, Stats., provides:
“ . . . The clerk of the supreme court shall remit to such court [from which appeal is taken] the papers transmitted to the supreme court on the appeal or writ of error, together with the judgment or decision of the supreme court thereon, within sixty days after the same shall have been made, unless the supreme court, on application of either of the parties, shall direct them to be retained for the purpose of enabling such party to move for a rehearing.”
Rule 37 of this court provides that every motion for a rehearing must be filed within thirty days after the decision, and Rule 38 requires that when such a motion is filed the papers in any case shall be retained by the clerk until the motion is disposed of. The decision of this case in this, court was rendered December 3, 1918; the time for filing a motion for a rehearing expired January. 2, 1919; and the sixty days for the clerk to remit the papers in the case to the court from which the appeal was taken expired February 1, 1919. There was no order made within these sixty *626days by this court, upon the application of either party, under sec. 3071, Stats., directing that the papers in the case be retained in this court for any purpose.
On February 4, 1919, the day on which respondent moved the court to open the default and grant him leave to file a motion for a rehearing, such an order was made by the court. This was, however, three days after the sixty days had expired within which the clerk of this court was required by sec. 3071, Stats., to remit the papers in the case to the lower court. It was expressly held in Hocks v. Sprangers, 113 Wis. 123, 87 N. W. 1101, 89 N. W. 113; Murphy v. State, 131 Wis. 420, 111 N. W. 511; Ott v. Boring, 131 Wis. 472, 110 N. W. 824, 111 N. W. 833; and Pringle v. Dunn, 39 Wis. 435, that the jurisdiction of this court ceases at the end of the sixty days from the date of the decision of the case by virtue of the provisions of sec. 3071, Stats., even when the papers are not actually remitted, unless they are retained by the order of the court.
As stated in the Pringle Case:
“The statute itself regulates our jurisdiction; not the compliance or the noncompliance of the clerk with its provisions. The mere omission of the clerk to remit the record, the mere accident that the appeal papers remain here notwithstanding the statute, cannot operate to continue the jurisdiction of the court against the words of the statute.”
Since no order was obtained from this court within the sixty days from the decision of the case directing that the papers in the case be retained here for the purpose of opening the default for filing the motion for a rehearing by respondent, it necessarily follows that this court was without jurisdiction on February 4, 1919, when it directed that an order be entered that the default be opened, and hence such order is a nullity and the court now has no jurisdiction to entertain the respondent’s motion for rehearing in this court. If the decision and judgment in this court leaves respondent remediless to present his rights under the Cum-mins amendment of August 9, 1916, to the interstate com*627merce act as amended by the Carmack amendment, we deplore that the necessary steps under the statute were not taken by counsel to retain jurisdiction of the case in this court and that this court has been rendered powerless to examine the record to ascertain whether or not an error had been committed in the trial of the case and before this court as the result of an omission on his part to present all the material facts under the issues raised by the pleadings and the provisions of the Cummins amendment of August 9, 1916. The case was presented to this court by counsel of both parties upon the theory that the rights and obligations of the respective parties were governed by the provisions of the Carmack amendment to the interstate commerce act. No allusion was made to the fact that this act had been amended twice since the Carmack amendment, which materially changes this statute as to the rights of the carrier to limit its liability for damage to property in the course of transportation. It is now claimed that a point not litigated in either court should have been presented, namely, that the defendant, under the Cummins amendment of August 9, 1916, had not been authorized or required by order of the interstate commerce commission to adopt a released rate, and that the tariff under which the shipment in this case moved is not legal and effectual and hence does not operate to restrict plaintiff’s recovery of damages to the specified amount of $150. The observation made by this court in the Prrngle Case may with profit be repeated here:
“In the decision of causes before us, we must depend largely on the presentation of them by counsel. ... If we find points not raised at the bar, we pass upon them. But if, as a rule, we should decline all reliance on the investigations of counsel, and assume to wade through all the records coming before us for all possible points arising upon them, and so perform over again the duties of the bar, we should at once so far fail in our own duties as to delay justice, which would sometimes be equivalent to denial of justice. . . . And if parties claim to have suf*628fered by mistake or neglect of counsel, and seek redress through the same or other counsel, they must do so with such diligence that they can overtake the jurisdiction of the court in the cause; so that they may be again heard without overriding the rules of law which go to the peace of society by the final end of litigation.”
Concededly the decision in this case was bottomed upon the grounds that the case was governed by the interstate commerce act before it was modified by the Cummins amendments of March 4, 1915, and August 9, 1916. If the fact is that the defendant under this act was required to obtain, by order of the interstate commerce commission, the right to adopt alternative rates based on declared values of the shipment, and that it has not done so, upon which point the record is silent, then the decision that the plaintiff is restricted in his recovery to the declared value of the shipment would be inapplicable to the actual facts of the case. But under the facts and circumstances above stated we are powerless to grant any relief to reopen the case for retrial to ascertain what the true state of facts on this point is.
The motion is therefore denied, without costs.