170 Wis. 532 | Wis. | 1920
Lead Opinion
The following opinion was filed December 2, 1919:
Although neither Tony Wojoiechozvski nor the Insurance Company appealed from the judgments of the circuit court affirming the award, they have filed briefs, evidently upon the assumption that this court, upon the appeal of Helen Lezala only, will review alleged errors of the Industrial Commission so far as they affect the award against them. That a judgment of the circuit court is binding and conclusive upon all affected thereby until reversed upon the appeal of those claiming it to be erroneous, and that upon the appeal of one judgment defendant this court cannot disturb the judgment as to non-appealing defendants, seems to us too plain for argument or the citation of authority. Tony Wojoiechowski and the Workmen’s Compensation Mutual Liability Insurance Company not having appealed from the judgments, this court cannot, upon the appeal of Helen Lezala, inquire into alleged errors affecting the judgments against them. Upon this appeal the court can do no more than to review the record in so far as it affects the only appealing judgment defendant, Helen Lezala. Tliis
At the very outset Helen Lezala contends that there was no evidence justifying the finding of the Commission that the applicant, Jazek, was in her employ at the time of the accident. The Commission found that on the day the injury was sustained “the applicant was in the employ of .the respondents Frank Lezala and Helen Lezala There is no finding as to the relationship existing between Frank Lezala and Helen Lezala. The record discloses that they are husband and wife, but whether the Commission considered them as partners, or Frank Lezala as the agent of Helen Lezala, his undisclosed principal, or what their business relationship was, does not appear. The evidence taken by the Industrial Commission shows that Frank Lezala was in fact a mason plasterer contractor and had been such for many years; that the subcontract with Wojoiechowski was in his name; that he had about twelve men working for him at the time, whom he hired and discharged, and, to all appearances, was the only person who had any voice or interest in the business. The only scrap of evidence in any manner connecting Helen Lezala with the business was the testimony of two workmen who had worked for Frank Lezala to the effect that they were paid by checks and that Helen Lezala’s name was on such checks. These men testified that Helen Lezala’s name was on top and Frank Lezala’s was below. “She made out the check .and he put his name to that — he signed below.” Evidently the Industrial Commission considered this testimony evidence of the fact that Helen Lezala was in some manner, not very clear to the Commission itself, interested in said business with her husband.
While it is true that if in any reasonable view of the evidence it will support either directly or by fair inference
“To allow a jury to reach a conclusion in favor of the party on whom the burden of proof rests, by merely theorizing and conjecturing, will not do. There must at least be sufficient evidence to remove the question from the-realms of mere conjecture.”
. Granting that her name was on the check, we can do no more than speculate as' to the significance thereof. Its presence might have been due to numerous reasons. In our judgment, the inference that Helen Lezala was in any manner interested in the business with her husband does not fairly arise from the circumstance. This being the only evidence justifying the finding of the Commission that Helen Lezala was the employer of the applicant at the time of the injury, the finding cannot be sustained. This conclusion effectually disposes of the case so far as Helen Lezala is concerned, and the numerous other questions urged as grounds for a reversal of the judgment as to her need not be considered.
By the Court. — The judgments of the circuit court affirming the award of the Industrial Commission as to the de
The.following opinion was filed February 10, 1920:
Rehearing
Upon a motion for rehearing, made by the judgment defendants Tony Wojoiechowski and the Insurance Company, it is urged that they are entitled to a review of alleged errors affecting 'the judgment as to them, by virtue of a notice, which it is claimed was regularly and timely served and filed under the provisions of sec. 3049a, Stats., that upon the hearing of the appeals in this court they would ask for a review of certain specified errors. It is suggested that this court has overlooked this notice, and our attention is pertinently called to the fact that it is on file here.
The original opinion was written upon the assumption that no such notice had been filed. This assumption was indulged by reason of the unchallenged statement of the attorney general to that effect made in his main as well as supplemental brief and upon the oral argument. One of the appropriate functions of a brief is to direct the attention of the court to pertinent matters appearing in the record. In the absence of any indication on the part of the moving defendants that such notice was on file and that it was relied upon to entitle them to a review of errors affecting the judgment as to them, a search of the record for the discovery of such a document on the part of this court is not to be expected.
It now appears that on the 4th day of November, the very day the case was argued, a notice conforming to the requirements of sec. 3049a was filed with the clerk. The question is therefore presented of whether the moving defendants, by virtue of such notice, were entitled to a re
“In case one of a number of parties jointly or severally bound by the same judgment appeals therefrom, he shall serve his notice of appeal on all parties who are bound with him by the judgment, and said parties shall thereupon within thirty days after such service, unless the time be extended by the trial court for cáuse shown, take and perfect their own appeals or be deemed to have waived their right to appeal. ... In any case the respondent may have a review of the rulings of which he complains by serviñg upon the appellant any time before the case is set down for hearing in the supreme court a notice stating in what respect he asks for a review, reversal or modification of any part of the judgment or order appealed from.”
It is conceded that the notice was served only upon the attorney for Helen Lezala, the appealing defendant. ’ It was not served upon the Industrial Commission nor upon the claimant. It is said, however, that the statute requires that it be served only upon the appellant, and this they did, Granting that this complied with the strict letter of the statute, it certainly did not comply with its spirit. It is not the purpose of the statute to permit one who is bound jointly with another by a judgment, upon the appeal of such other, to secure a reversal of such judgment as to him by the service of a notice merely" upon the one appealing. ’ The one appealing does not necessarily have an adverse interest in the question as to whether his co-judgment defendant is also entitled to a reversal. The one in whose favor the judgment is rendered is the one interested, and the statute will not be construed so as to entitle a co-judgment defendant to a review of alleged errors without giving notice of application therefor to _ the party in whose favor the judgment is rendered. However, that this provision of sec. 3049a does not apply to a situation of this kind at all is plainly revealed by the first sentence thereof, which pro
In this case it Was incumbent upon the moving defendants, by the express provisions of the statute, to take their appeal within thirty days after their co-judgment defendant appealed. Not having done so, they waived their right to appeal, and they cannot accomplish the same thing by service of the notice provided for in the closing sentence of the section. The purpose of the latter provision is plain. It is to enable a party who is adversely interested in an appeal, generally the respondent, to secure a review of alleged errors prejudicially affecting him, by the giving of this notice. It was not the purpose of the statute to authorize a review under circumstances here presented. Nor is such notice efficient to procure a reversal of the judgment in the absence of an appeal therefrom.
By the Court. — Motion for rehearing denied, without costs.
