Brown v. Gaulke

191 Wis. 347 | Wis. | 1926

Stevens, J.

1. Counsel concede that the order extending time to dispose of motions after verdict was null and Void because it set forth no facts showing cause for such extension within the rule stated in Borowics v. Hamann, 189 Wis. 212, 218, 207 N. W. 426, 428.

2. Counsel request that the court pass upon the merits of the questions raised by the motions after verdict. This cannot be done. The failure to decide the motions within the time fixed by sec. 270.49 of the Statutes resulted in a constructive denial of the motions pending at the expiration of the sixty-day period. An order denying the motion for a new trial is not appealable. The case is here upon the appeal of the plaintiff alone. The plaintiff cannot question rulings which are favorable to herself. Again, the order being a void order, the court takes jurisdiction only to reverse the order. The court cannot on an appeal from a void order pass upon the merits of the questions raised by the motions after verdict. Borowicz v. Hamann, 189 Wis. 212, 220, 221, 207 N. W. 426, 429, 430. This conclusion is not in conflict with that reached in Kurath v. Gove Automobile Co. 149 Wis. 390, 392, 135 N. W. 752, in which case the appeal was from the judgment, which necessarily involved the merits of the constructive denial of the motion for a new trial.

By the Court.-r — Order reversed, and cause remanded for further proceedings according to law.