Elmergreen v. Kern

167 Wis. 560 | Wis. | 1918

Roseeberry, J.

It is to be regretted that this appeal must be disposed of upon practice questions. It hardly needs more than a statement of the facts to show that- the circuit court for Milwaukee county had no power to enter an order permitting the plaintiff to remit all but $5,000 from the verdict and take judgment therefor twenty days after the return of the remittitur on appeal. It would be an anomalous thing if a trial court by such an order could limit the effect of the appeal and predetermine the issues in favor of one or the other of the parties after the matter had been heard and determined in this court, to the extent of giving one of the parties the right at his option to enter judgment, irrespective of the determination of the appeal, for an amount fixed in advance by the trial court. If such a practice were sustained it would make of this court a moot court instead of an appellate court. The order of July 12, 1912, was not an appealable order unless it was an order granting a new trial. Plaintiff did not file his remittitur within the twenty days, and it being beyond the power of the court to extend the time within which the plaintiff might remit and enter judgment in accordance with the original order until twenty days after the return of the remittitur on appeal, it must be held that the order of July 12, 1912, became by the lapse of time an order granting a new trial. The appeal therefrom, assuming it to be properly taken, having been dismissed, upon the filing of the remittitur in the circuit court for Milwaukee county the case stood for trial.

The respondent claims that the circuit court, pursuant to the provisions, of sec. 28'32, Stats., could extend the time within which plaintiff might .elect to file the remittitur. That section provides:

“The court or a judge may likewise, in discretion and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, stipulation or other proceeding against him, through his mistake, inadvertence, surprise or excusable neglect and may supply an omission,” etc.

Waiving the question as to whether or not notice to plaintiff’s original attorneys was notice to him, it is conceded that plaintiff had notice of the dismissal of the appeal in the month of July, 1916. The decision upon the motion to extend the time within which the remittitur might he filed was made August 1, 1917, and the order extending the time was entered August 29, 1917. It has been repeatedly held that it is not enough that a motion for relief under sec. 2832 be made within a year after the party has notice of the proceeding against which he is seeking relief, but that the court granting relief must act within the year. Fischbeck v. Mielenz, 162 Wis. 12, 154 N. W. 701, and cases cited.

The order extending the time twenty days after the filing of the remittitur being beyond the power of the trial court to make in this instance, the proceeding under sec. 2832, Stats., is referred to only for the purpose of emphasizing the necessity of action by the court to which the application is made within the time there specified.

One question affecting the merits is presented by the record in this case which we think should be passed upon.in view of the fact that a new trial must be had. The facts are very intricate, the trial having extended over a period of three weeks, and we shall not attempt a full statement, but shall state only such facts as are necessary to present the question: It ap-by the making of which it is claimed plaintiff agreed to stop pears that after the making of the alleged contract in 1905, the prosecution of a certain suit then pending in the state of Utah, he thereafter- prosecuted said suit to final judgment, and in the trial of this action the record of the Utah action was offered in evidence and the trial court declined to receive it. It appears that the suit in question, being one brought by the plaintiff here against the Ophir Tunnel Company and other defendants, affected the title to certain mining claims which were then or thereafter owned by the Cliff Mining Company. The result of the trial of the Utah suit was a determination that the plaintiff had no interest in these claims. In the Utah suit the plaintiff in this action was the plaintiff there; the Ophir Tunnel Company, Michigan Ore Company, A. B. Herrmann, Bernard H. Stewart, J ames A. Burtchart, Erank Worthing, Peter Weimer, A. N. Cherry, Albert Richter, Jessie Weimer, John B. Weimer, and Edward Pilt were the defendants. The Ophir Tnnnel Company and the Michigan Ore Company were predecessors in title of the Cliff Mining Company, and the defendant here was a stockholder in said companies and also in the Cliff Mining Company. The record in the Utah suit should have been received in evidence by the trial court.

It appears from the record in this case that a very large part of the consideration for the contract which plaintiff claims the defendant here entered into was the withdrawal of the Utah suit. It also appears from the record that the information which plaintiff had, and which'he agreed to turn over in part performance of his contract with the defendant, related to the so-called California claim and could not have been of very substantial value for the reason that the defendant or his company wa's thereafter obliged to pay $20,000 in settlement of claims based upon the adverse ownership of the California claim. If the record in the Utah suit had been received and the whole ..case were before us, a very serious question as to the right of the plaintiff to recover any damages other than for the value of the memoranda furnished in reference to the California claim would be presented. Had the record in the Utah action been received, the plaintiff might have offered further proof; so that the record as it stands is incomplete. The whole matter not having been presented, it cannot now be determined.

By the Court. — Judgment reversed, and cause remanded for a new trial.