Kling v. Sommers

31 N.W.2d 206 | Wis. | 1948

On or about February 26, 1942, William Kling and Elda Kling, his wife, brought an action to foreclose a certain real-estate mortgage made and executed by the defendant William J. Sommers upon a funeral home in the village of Hortonville. William J. Sommers, the defendant, appeared by counsel and the usual judgment of foreclosure was entered on March 30, 1942.

On July 19, 1942, Sommers entered the armed forces of the United States and remained therein until his discharge on December 30, 1945. On July 2, 1943, the mortgaged premises were sold by the sheriff pursuant to the judgment entered on. March 30, 1942, at public sale to the defendants Arnold Borchardt and Lawrence Moder. On July 26, 1943, the sale was confirmed by order of the court and the sheriff's deed to the premises was duly executed and delivered to the defendants Borchardt and Moder, who have ever since claimed to be the owners of the mortgaged premises. On March 30, 1946, following his discharge from military service, Sommers made a motion in the circuit court for Outagamie county to have the confirmation of said sale made July 26, 1943, and the sheriff's deed issued thereon vacated and set at nought, and that the defendant Sommers be granted an enlarged time for the redemption of the mortgaged premises from the foreclosure judgment. A formal order was entered July 1, 1946, denying the defendant's motion. On July 2d counsel for Sommers moved for a "retrial and extended trial" of the matter because of certain errors alleged to have occurred upon the hearing before Judge MURPHY. On July 5, 1946, the court on its own motion vacated and set aside its previous order denying Sommers' motion. The matter was thereafter brought on for hearing before the court, M. G. EBERLEIN, Judge, presiding, and an extended trial was had of the issues and considerable testimony was offered on both sides. The court rendered its decision on May 7th, and on June 7, 1947, the court made findings of fact and conclusions of law and entered final determination which was denominated an order and which in terms denied the several motions of Sommers made on March 30, 1946.

Service of notice of entry of this order was admitted in writing by Sommers' counsel on June 12, 1947. On or about September 2d a bill of exceptions was proposed on behalf of Sommers and was settled by stipulation of the parties. No further proceedings looking toward an appeal were taken or attempted until November 4, 1947, at which time in accordance with the provisions of sec. 274.04, Stats., the time for appeal had expired.

On December 12, 1947, the plaintiff moved to dismiss the appeal on the ground that the same was not taken within the time limited by law. The motion to dismiss was argued orally and briefs were submitted by the parties. The question for decision is: Was the determination of June 7, 1947, which denied defendant's motion, a judgment or an order? A considerable amount of argument was indulged in on the hearing, involving the right of the trial court to proceed with the foreclosure of the mortgage and confirmation of the sale on the ground that under the Soldiers and Sailors Civil Relief Act the proceedings should have been stayed. Unless there is an effective appeal none of these matters are properly before this court for the reason that in the absence of an effective appeal this court has no jurisdiction. Therefore, the only question to be determined is whether the determination of June 7th is an order or a judgment. If it is an order the appeal was not taken within the time limited by law.

It is considered that this case was ruled against the contention of the defendant and appellant by the case of Newlander v.Riverview Realty Co. 238 Wis. 211, 298 N.W. 603. In that case there was a motion to dismiss the appeal on the ground that the appellant had not served the notice of appeal on the movants, who were jointly and severally bound by the appellant by the purported judgment contained in the order of December 26, 1940. This court held that while the language was the language of a judgment the determination of the court was in fact an order in a proceeding at the foot of the judgment. Sec. 270.53, Stats., which defines "judgment" and "order."

In view of the contentions made here we shall supplement what was said in Newlander v. Riverview Realty Co., supra. As was pointed out in the Newlander Case the mere fact that an order may make a final determination as to certain rights of parties does not make it a judgment. Therefore all determinations entered in special proceedings are orders and not judgments by statutory definition. The matter was discussed to considerable extent in the case of In re Henry S. Cooper,Inc., 240 Wis. 377, 2 N.W.2d 866. In this case it appears from a mere statement of the facts that the question for decision by the trial court was brought on for hearing by a motion. It is a matter not within the issues made by the pleadings. Sec. 262.01, Stats., provides: "A civil action in a court of record shall be commenced by the service of a summons or an original writ." The proceeding in which the determination of the court was rendered in this case was instituted by a motion. An order to show cause is equivalent to a notice of motion and the court proceeds thereon as upon a motion.Gimbel v. Wehr, 165 Wis. 1, 160 N.W. 1080; State ex rel.Ashley v. Circuit Court, 219 Wis. 38, 261 N.W. 737. If the contention of the defendant and appellant in this case were sustained, then practically every order made in the course of litigation would be a judgment, because with comparatively few exceptions the effect of the order is to make a final determination as to some controversy. It is so nearly self-evident that a determination made upon a motion is an order and not a judgment under the statutory definition and the decisions of this court that it needs no further elucidation.

By the Court. — Appeal dismissed.