17 Wis. 2d 101 | Wis. | 1962
1. Appealability of order. By statute, an order which grants, refuses, modifies, or dissolves an injunction is appealable.
3. Plaintiff’s claimed right to present testimony. Plaintiff evidently believes his motion could have been more persuasively presented if he had been permitted to offer the testimony of witnesses. He argues that he had an absolute right to present testimony, or that at least the court abused its discretion in denying the opportunity. He relies upon a statute relating to hearings on motions, generally. Sec. 269.32 (3), Stats., provides:
“When a notice of a motion for an order has been served either party may take depositions, on notice, to be used on the hearing of such motion. Testimony may he taken on the hearing and such testimony shall be transcribed, certified, and filed at the expense of the party offering the same unless otherwise ordered.” (Emphasis supplied.)
We understand the italicized words as authorizing the court to hear testimony in order to resolve an issue of fact, ■the determination of which is necessary or proper in order to decide a motion. This statute applies to motions generally, not specifically to a motion for temporary injunction. Plaintiff, in substance, asked the circuit court to determine, on a motion for temporary injunction, the same issues of fact, going to his right to relief, that must be determined upon the trial of the action. The record does not suggest
Many years ago there was doubt of the propriety of a court’s hearing testimony on any motion.
In 1934, the provision relied on by plaintiff was inserted by rule of this court.
The circuit court did not abuse its discretion in refusing to take testimony in this instance. Judge Gordon indicated that the issues pertinent to the motion went to the merits and would have to be decided upon the trial. He indicated
By the Court. — Order affirmed.
Sec. 274.33-(3), Stats.
(1895), 89 Wis. 486, 495, 61 N. W. 283.
For recent illustrations, see Bartell Broadcasters v. Milwaukee Broadcasting Co. (1961), 13 Wis. (2d) 165, 108 N. W. (2d) 129; Scheer v. Weis (1961), 13 Wis. (2d) 408, 108 N. W. (2d) 523;
Bartell Broadcasters v. Milwaukee Broadcasting Co., supra, footnote 3; Lehmann v. Waukesha County Highway Comm., supra, footnote 3.
Bartell Broadcasters v. Milwaukee Broadcasting Co., supra, footnote 3.
“The court is not bound to hear a witness on the stand at the argument of a motion, particularly as it is not the practice.” Fowler v. Colton (1843), 1 Pin. 331, 339. Hearing oral testimony upon a motion cannot be allowed because there is no provision for preserving a record of the evidence. Carr v. Commercial Bank of Racine (1864), 18 Wis. 268 (*255), 269 (*256). There is much doubt concerning the practice of permitting oral testimony upon the hearing of a motion. Sweet v. Modern Woodmen (1919), 169 Wis. 462, 468, 172 N. W. 143. The question is left open, one of the objections being that there is no way of preserving the testimony for review upon appeal. Will of Bilty (1920), 171 Wis. 20, 24, 176 N. W. 220.
(1934), 212 Wis. p. x, amended to present form 217 Wis. pp. vii, viii.