Sherwood v. Redfield

171 Wis. 91 | Wis. | 1920

The following opinion was filed January 13, 1920:

Winslow, C. J.

This case is in all respects similar to the case of Frontier M. Co. v. Industrial Comm. 168 Wis. 157, 169 N. W. 312, except that in the last named case no service of the notice of appeal was at any time made on the claimant, while in the present case such service was made after the expiration of the thirty-day period and after the motion to dismiss had been made. It was assumed by counsel and court in the Frontier Case that the notice of entry of judgment served by the attorney general on behalf of the Commission set the thirty-day period in which appeal might be taken in full operation, so that if it was necessary to serve the notice on the claimant personally it must be done within the period. The contention made there was that the attorney general, though appearing for the Commission, in fact represented the claimant as well, and hence that service of notice of appeal on him was in effect service upon the claimant..

In the present case the contention is that the notice of entry of judgment served by the attorney general can only serve to set the thirty-day period running in favor of the Commission, and that, no notice having been served by the claimant, the thirty-day period has never commenced to run in his favor, and hence that both appeals are properly here.

We have given the subject very careful consideration and feel convinced that this contention cannot and ought not to prevail in a case like the present. This is a case where the judgment is a single indivisible proposition in favor of two parties. No part of it could be reversed as to one party and affirmed as to the other it must be affirmed as to both parties or reversed as to both parties. It is not a case where there is a judgment with a number of provisions, some affecting one party and some another, some of which could be reversed while others could be affirmed. In such case it may well be that notice of entry of judgment should be given by each party having a separate interest to protect (although we do not decide the point now), but no such considerations are present here. There is here but a single judgment, and a single proposition in dispute. On one side of that proposition stands the appellant insisting on reversal, on the other side stand the Commission and the .claimant insisting on affirmance. The statute (sec. 3042) limits the time to thirty days from the date of the service “by either party upon the other” of the notice of entry. We hold that in the case of a single indivisible judgment like the present in favor of two litigants, a notice served by one of them upon the adverse party is to all intents and purposes a notice served by one party upon the other, and sets the thirty-day period .running in favor of both. Any other construction would lead to absurd results. Take the present case, for instance. Suppose the appellant had allowed the thirty-day period to pass by and served no notice of appeal on the Commission, but afterward concluded to serve notice of appeal on the claimant. Under, the contention of the appellant he could do so and prosecute his appeal to a judgment of reversal, and the situation would then be that there would be no award so far as the claimant is concerned, but there would be a robust and full-grown award so far as the Commission is concerned, which never could be affected because the time for appealing had expired.

We have found little authority which throws any light on the subject and have preferred to decide the question upon the evident intent of the statute.

By the Court. — Appeal dismissed without costs.

A motion for a rehearing was denied, without costs, on March 9, 1920.