144 Wis. 480 | Wis. | 1911
In view of the practice adopted by the trial court in this case in certifying a question to this court for answer, presumably pursuant to ch. 429, Laws of • 1909 (see. 3052m., Stats.'), it seems advisable to indicate the purpose of that act. The section provides that:
“The bond required by sec. 3044 of the statutes on the issuance of a writ of error and the undertaking required by sec. 3052 of the statutes on an appeal shall not be required if the judge before whom the action or proceeding was tried*482 shall certify that the cause or proceeding necessarily involves the decision of some question of law of such doubt and difficulty as to require a decision of the same by the supreme court, or that it necessarily involves the construction or interpretation of some provision of the constitution of the United States or of the constitution of this state, or that the party desiring the writ of error or the taking of an appeal is unable to furnish such bond or undertaking; provided, however, that such certificate shall not be made except upon notice to the parties interested. Such certificate shall be filed with the clerk of the court and be returned with the record in the case to the supreme court with the writ of error or appeal.”
It is apparent from a mere reading of the act that it dispenses with the necessity of furnishing the bond required by sec. 3044, Stats. (1898), in case of a writ of error or of the undertaking required by sec. 3052 in case of an appeal, if the trial judge shall certify (1) that the cause or proceeding necessarily involves the decision of some question of law of such doubt and difficulty as to require a decision of the same by the supreme court; or (2) that it necessarily involves the construction or interpretation of some'provision of the constitution of the United States, or (3) of the constitution of this state; or (4) that the party desiring the writ of error or the taking of an appeal is unable to furnish such bond or undertaking. In this case the trial judge certified that the appellant was unable to furnish the undertaking, and such certificate dispensed with the necessity of giving an undertaking, and the appeal so taken raised such questions only as would be raised by an appeal and undertaking in the usual manner. The statute referred to does not authorize the trial judge to certify a question to this court, and therefore the question certified cannot be answered.
Plaintiff contends that we cannot consider the appeal upon the merits because the trial court had no jurisdiction to decide the motion for a new trial made upon the minutes of the judge after the expiration of the term at which the cause was tried and the motion made. This contention is based upon
“The judge before whom the issue is tried may, in. his discretion, entertain a motion to be made on his minntes, to set aside a verdict and grant a new trial npon exceptions or because the verdict is contrary to law or contrary to evidence, or for excessive or inadequate damages; but such motion if heard upon the minutes can only be heard at the same term at which the trial is had. .When such motion is heard and decided upon the minutes of the judge and an appeal is taken from the decision, a bill of exceptions must be settled in the usual form, upon which the argument of the appeal must be had. If such motion be made, but not decided during such term, it shall be taken as overruled, and an exception to such constructive denial of the same shall be allowed in the bill of exceptions.”
This enactment was evidently intended to prevent unreasonable delay in the decision of such motions and secure to litigants a reasonably speedy determination thereof. Second Nat. Bank v. Smith, 118 Wis. 18, 94 N. W. 664. That serious abuses in this respect existed must be assumed, or else the legislature would not have been called upon to act in the matter. Its power to prescribe reasonable rules and regulations for the final disposition of business pending in trial courts cannot be questioned. It might be argued, however, were this the only statute affecting the subject, that a rule requiring a trial judge to decide such a motion during the term, even when it is made during the last hour thereof, as it may be, is not a reasonable rule, in that it may not in such a case give the trial judge adequate time in which to consider and determine the matters involved. But in sec. 2424, Stats. (1898), as amended by ch. 6, Laws of 1905, the legislature has provided an easy and ample remedy for such situations. That section provides: “One term may be adjourned beyond the beginning of the next term in the same county for such specific business as is named in the order of adjournment.” This enables a judge who may have business to dispose of that
The defendant claims that, inasmuch as the order was dated April 2d, it must be considered as made during the term the cause was tried and the motion made, and he argues that sec. 2878 as amended cannot be construed to take away from courts the power to enter nunc pro tunc orders. It is not necessary to decide the question as to what restrictions, generally speaking, the legislature may lawfully impose upon courts in the granting of nunc pro tunc orders, for it is obvious that if trial courts could lawfully decide such motions as the one in question at any time, then simply enter a nunc pro tunc order as of a day of the term at which the motion was made, the statute would be nugatory. The decision of the court upon the motion must, unless waived by the parties, be made during the term, the case was tried or else jurisdiction to decide is lost. Prentiss v. Danaher, 20 Wis. 311; Gans v. Harmison, 44 Wis. 323. It may be said that the
In that portion of sec. 2424, Stats. (1898), relating to the Second circuit, from which this appeal is taken, is found this provision:
“Any trial, hearing, argument or assessment which shall have been commenced during any term, but shall not have been concluded before the commencement of the next term, shall be continued and proceeded with at said next term in the manner and with like effect as though it had been commenced at that term.”
It may be claimed that this provision saves the motion and that it does not, pursuant to sec. 2818 as amended (ch. 100, Laws of 1901), stand overruled at the expiration of the term. But we are of the opinion that this provision relates to a pro-. ceeding in which the parties or their attorneys participate, and not to the mere taking under advisement by the judge of the decision of a hearing or argument already concluded by the parties.
It follows that the trial court, having allowed the term'to lapse without a continuance, had no jurisdiction to decide the motion on May 21st, when, the record shows, the decision was made, and that it must, by force of sec. 2818 as amended, be deemed to have been overruled. This result precludes a consideration of the case upon the merits.
By the Court. — Order reversed, and cause remanded for •further proceedings according to law.
