*1 Marriage :of re Petitioner-Respondent, R. Soquet, Joan Soquet, Respondent-Appellant-Petitioner. Gerald J.
Supreme Court Argued February 28, 1984. March 1984. No. 83-849. Decided 401.) (Also reported in 345 N.W.2d respondent-appellant-petitioner For there were *2 by Liebmann, Conway, C. Griesbaсh briefs William Olejniczak S.C., argument Jerry, Bay, and oral & Green by Mr. Griesbach. by petitioner-respondent
For the there was a brief Pressentin, Bay, argument by F. oral James Green Mr. Pressentin.
DAY, unpublished J. review an This of decision dismissing appeal appeals the court an of of the from county, Jaekels, circuit court Brown John for Hon. C. judgе. circuit on The issue review is: Does a letter this respondent’s petitioner’s1 from counsel to counsel stat- ing judgment has been entered constitute “written judgment” of notice the of that reduces the time filing appeal days forty-five days ninety for an from under sec. Stats. 1981-82.2 conсlude We period forty- appeal that the shortened to days only timely filing five if there has been a judgment. formal notice Since there no was appeal formal such case and since the was this ninety day filed within limit, the decision the is reversed and cause is remandеd to petitioner’s that court appeal. to hear the Soquet (Petitioner) Gerald J. Soquet Joan R. (Respondent) opposing parties were in a divorce action. Final on the matter was entered the circuit county 9, court for February Brown on 1983. On Febru- “petitioner” designate petitioner We use the term court, Soquet. Soquet Gerald J. Joan will as R. be referred to “respondent,” designation appeals. her in the court of appeals. (1) “808.04 Time for to the court of Initiat AN An to the court of must be initiated days appealеd within if or from written notice given, or order except within 90 given, provided if notice is not as expressly provided by in this section or otherwise law.” attorney peti- respondent’s ary 1983, mailed the 23, attorney page which contained the a one letter tioner’s following pаragraph: was filed “Incidentally, in this matter secretary February My me that she did 9, on 1983. tells secretary your your the date
call of and inform office Friday. filing. of it last You to be unaware seemed appear standpoint, it would From the Trial Court’s Soquet case is over.” eighty-five days the date of May On judgment, petitioner filed a notice of respondent moved to appeals. The with the court of February ground appeal on dismiss 23rd3 constituted “written letter thereby reducing 808.04(1), Stats., judgment” sec. under *3 days forty-five after the to file an to time granted entry judgment. The court of date of of This respondent’s motion and dismissed granted petition petitioner’s for review. court requires 808.04(1), Stats., that Section “[a]n days within must be initiated entry judgment appealed of from if written of or order judgment given, of or within is days given. . . .” This of if not case notice is required presents question type of what of notice is forty-five day applicable. peti- The make limit argues form a formal tioner that must be in the of signed. The re- court document which is argues spondent requires that is that all the statute writing. inbe Stats, requires 806.06(5), Section that “[n]otice days givеn must be after order within 808.04(1).” or order to constitute notice under sec. respondent’s The letter was mailed fourteen challenge pet' was entered. ioner the timeliness The does adequate. if it letter to be found reading support 808.04(1), Stats., of his of sec. petitioner рoints 802.01(2) (d). to sec. That section signing applicable captions, rules states “[t]he pleadings apply and other matters of form to all mo- papers .” (Emphasis and other . . tions action supplied.) papers” Petitioner claims that “other include judgment. Respondеnt argues notices of they do not as notices of out- occur side of the trial regarding par- court’s area concern a ticular action. papers”'
While “other specifically never defined statutes, Stats., suggests 801.14, they sec. do judgment. include 801.14(1), notices of Sеction part: states “801.14 pleadings Service and and other
papers. (1) Every required by its terms to be served, every pleading unless the court otherwise orders defendants, every paper relating because numerous discovery required upon to be served unless the еvery orders, court otherwise written motion than other may one which parte, be every heard ex written notice, appearance, demand, judgment, under- offer of taking, the paper upon and similar shall be served each of parties.” (Emphasis added.) “ begins: (2), Section 801.14 under these stat- [w]henever utes, pleadings service papers required. and other (Emphasis . . .” added.) begins: Section papers ll required after the summons to be served “M upon party shall be filed with the within a reason- *4 able time (Emphasis added.) after service.” Seсtion 801.14(5), begins: pleadings other and “[t]he papers required with by the court as . . .” these statutes. (Emphasis added.) apparent It seems “other papers” papers” 801.14(2), and “all referred in section (4) (5) and mean the in 801.14 listed section documents (1), including “every upon . written notice . . served Therefore, papers” parties.” when “other each of formal, cap- by 802.01(2) required to be (d), section are signed documents, entry court notices tioned and judgment in that term. to be included seem however, argues, that under section 808.04
Respondent judgment Stats., entry nеed not be a notice (1), “given.” only Therefore, is such a notice “served” but 801.14(1), not list found in section is not included papers” in other in the “other considered included terms required statutory sections, by 802.01 and section signed. (d), formal, (2) to be and “given” means can be of what the term Clarification 806.06, the comments of found in section and following. 806.06(3) section Council Judicial by supreme (5), to read: and were amended judgment. perfection entry of Rendition, “806.06. entered, either (3) judgment .. . After or an order party may upon serve a written the other containing entry. . . . the datе of “ given (5) within must be Notice of constitute or added.) (Emphasis 808.04(1).” notice under s. (3) and the 806.06 The of the word “serve” in section use sug- (5) 808.04(1) reference to section subsection synony- gests “given” as used mous with “served.” the 1981 about
The comments the Judicial Council interpretation: support amеndments add further clarify (3) (5) what “Subsections are amended constitutes a to reduce sufficient notice written docu- time. The must be a containing order, ment, other than the date and served after in- accurately completely or order. The notice must entry.” (Em- opposing form as to the date of phasis added.) *5 The use of words and “document” “served” demon- strates that the Judicial Council intended that the notice by implication, formal, cap- must be and fall under tioning signing requirements and 802.01(2) of section (d), Stats. interchangeability “given”
The
of the words
and
“sеrved” as used in this statute
shown
is
in the method
by
accomplished.
which
Muniz,
each
is
Bruns v.
(Ct. App. 1980),
2d
Wis.
the court
N.W.2d
“given”
held that notice of
when
Similarly,
mailed.
stated:
by
complete upon mailing.”
giv
mail
“[s]ervice
That
serving
and
accomplished
can be
in an identical
manner is
statutes,
further
that,
evidence
as used in the
meaning
there
no
difference in
between
two.
previously
While
ques-
this court has not
addressed
tion
required
of what
808.04(1).,
notice is
under section
Stats., this court
term
has construed the
“written notice”
require
in other contexts to
than
more
actual notice. In
Obеnberger
Obenberger,
200 Wis.
The court While father, proved on the was served had that the order proof of notice of cоurt found “no of the service running in which to time the order to set the at Because there from order.” 200 Wis. 320. said judg- proof was no of a notice of of service 274.04, Stats., ment, did not that the court ruled section year apply from the date and that the had one father apрeal, his a limitation to initiate complied. with which he had Siegel, see, e.g., v. cases, other Brown This and ; Calvetti, 255 (1926) v. Lauren Wis. N.W. 688 consistently (1949), held Wis. have N.W.2d writing requires a that “written notice” more than which gives been has the order requires Instead, “that service entered. necessary. entry of written notice of the the order is holdings Siegel, . .” . Brown at 259. The 191 Wis. significant especially because the statutes these cases are statute at involved fulfilled the same function as the present form namely prescribing what case, issue in the must judgment or order written notice of of a for the time it limit take before is deemed sufficient consistently required writ- appeal. formal This court has limiting ten or order statutory time for requirement
A that a notice be signed sup- a formal document is further general ported by considerations fairness. The rule is “[sjtatutes giving liberally right are construed, interpretation an which work a for- will right feiture of favored.” 3 Stat- Sutherland utory (1974). Interpreting Construction section 67.08 permit party’s reduction of a giv- appeal upon party’s time for opposing judgment by letter or other in- *7 writing formal increases thе likelihood that the valuable right to unwittingly. will be lost Such informal easily lost, is much more notice misfiled or overlooked signed than a standard court document. Furthermore, expense required the additional effort and give to opposed formal slight, as to informal notice is рarticularly consequences opposing view of the for the party. The result of such formal written notice a fairer, process more that, certain and more informative be, easily if proven need can be more in court. Finally, requiring that written notice seсtion under 808.04(1), Stats., be formal a document is consistent with comparable, provision the of the Federal Rules of Civil Procedure. 77(d) requires
Federal Rule of the clerk court the to judgments a of serve upon notice of and orders every party addition, affected thеm. In rule the states “any party may in addition serve a notice of such entry in provided the manner in Rule 5 for service of papers.” 801.14, Rule is almost identical to requires though formal service. Even the give consequences a failure notice are less under the (i.e., fedеral rules than under lack Wisconsin law of the notice or does not affect appeal), time require the the federal rules formal writ- give party at all. In if a seeks to Wiscon- ten notice giving failing give adequate sin, where stakes argument for higher, notice are much it seems compelling. formal, even more written petitioner’s appeal court of to the We conclude statutory provision appeals timely limit- was because forty-five days the time for so, properly To do was not set motion. signed judg- formal, captioned and a stating be ment was entered must the date the twenty-one opposing served on the within copy addition, date. In a of the notice with trial court within must be filed Therefore, period reasonable of time. decision appeals court remanded to that should be reversed and petitioner’s court’s of the trial to hear the underlying decision divorce action.
By the Court. —The decision reversed and remanded. (concurring). I ABRAHAMSON, J. S.
SHIRLEY agree majority’s the court remand of this case to with remaining In disposition issues. on the register my objection rеcently begun *8 I asmuch as have to remanding app practice to court of to cases why eals,* separately explain re I I conclude write appropriate mand in this case. court, general after decid-
As
I do
think this
rule
remaining
case,
several
remand
issues in
should
appeals
issues
decision when these
court of
*
Department
Shopper Advertiser,
See, e.g.,
Inc. v. Wisconsin
Revenue,
(1984);
Radtke v.
115
117 Wis. 2d
N.W.2d
Milwaukee,
550, 558,
(1984);
Crown
2d
N.W.2d
Wis.
LaBonte,
26, 45-46,
Ins. Co.
2d
issues been briefed and In have to this court. judicial economy, speedy ap- the interеst of resolution of peals, litigants, to the finality reduced costs of deci- sions, if all the issues have been I briefed would this have court decide the entire case when it is before us on re- view. case, however, this appeals remand court of
is, my entirely opinion, appropriate. The substantive issues divorce involved action have never been presented parties any way briefed in the appeals inor court. The court of prior briefing dismissed the in this case on the ground timely. the notice of was not We timely. conclude the was Under these circum- stances the court of should receive the briefs and decide the presented substantive issues on