Anderson v. Eggert

• Decision Date: 09 April 1940
• Citation: 234 Wis. 348,291 N.W. 365
• Parties: ANDERSON v. EGGERT et al. and three other cases.
• Court: Wisconsin Supreme Court

234 Wis. 348

291 N.W. 365

ANDERSON

v.EGGERT et al. and three other cases.

Supreme Court of Wisconsin.

April 9, 1940.

Appeals from orders of the County, Circuit Court Branch, for Shawano County; C. B. Dillett, Judge.

Reversed.

The four actions arose out of an automobile collision which occurred on December 18, 1938. On February 7, 1939, A. O. Anderson, plaintiff, began an action against Alfred Eggert and Maryland Casualty Company, a foreign corporation, defendants. On February 7, 1939, Floyd L. Litzen, plaintiff, began an action against A. O. Anderson, his insurance carrier, Employers Mutual Liability Insurance Company, a corporation, Alfred Eggert and Maryland Casualty Company, a corporation, defendants. On February 7, 1939, Sylvia Litzen, plaintiff, commenced an action against A. O. Anderson, Employers Mutual Liability Insurance Company, Alfred Eggert and Maryland Casualty Company, defendants. On March 21, 1939, Alfred Eggert, as administrator of the estate of Edna Eggert, deceased, plaintiff, commenced an action against A. O. Anderson and Employers Mutual Liability Insurance Company, defendants. The actions were consolidated for trial.

Upon the trial the jury returned a special verdict by which it found A. O. Anderson, who was alone in his car, driving northerly, was without fault. In the Anderson case, the jury found that Alfred Eggert, driving his car southerly (the plaintiff Floyd L. Litzen sitting with him in the front seat, Edna Eggert and Sylvia Litzen being in the rear seat), was guilty of 100% of the negligence causing the accident.Eberlein & Eberlein, of Shawano, for appellants.

Winter & Koehler, of Shawano, and Benton, Bosser, Becker & Parnell, of Appleton, for respondents Alfred Eggert and others.

Wallrich & Aschenbrener, of Shawano, for plaintiff-respondent Litzen.

Motions to Dismiss.

ROSENBERRY, Chief Justice.

Alfred Eggert and the Maryland Casualty Company and Alfred Eggert, as administrator of the estate of Edna Eggert, moved for a new trial. There was a similar motion by Floyd L. Litzen and by Sylvia Litzen. Anderson moved for judgment upon the verdict which was returned June 30, 1939. There was also a motion for a new trial on the ground that certain jurors had not truthfully answered questions asked them on the voir dire examination made by Floyd L. Litzen, Sylvia Litzen and Eggert personally and as administrator. Combined with these were other motions to change the answers and the usual motions made in such cases. The motions were apparently heard together, the motion with respect to the misconduct of the jurors being supported by witnesses produced upon the examination who testified orally. At the close of the hearing this motion was denied and it will receive no further consideration.

On August 18, the witness produced on behalf of Anderson had been examined. Counsel for the plaintiffs Litzen asked for an adjournment for a sufficient time to enable the testimony of other witnesses to be produced, including that of one Jelinski. The court granted this motion and continued the hearing to the 31st day of August, 1939, at 2 o'clock in the afternoon. In connection with the granting of this continuance it was brought to the attention of the trial court that the adjournment was beyond the sixty day period in which sec. 270.49, Wisconsin Stats., requires motions for a new trial to be decided. Thereupon counsel for Eggert attempted to comply with the statute and filed an affidavit in which, among other things, it was alleged: “That it is necessary that the court make an order at this time extending the time for hearing and deciding such motions; that at said hearing on August 14, 1939, it was stated by this affiant in open court, in presence of the other attorneys, that it would be necessary to extend the time for hearing and deciding said motions, at which time it was suggested by the court that an order be prepared extending the time for the reason that cause, therefore, existed; that this affidavit is made for the purpose of procuring the entry of a written order for extending such time for a period of sixty (60) days.”

This was certainly a weak attempt to comply with the statute which requires cause to be shown. The order made on August 25, 1939, and so within the sixty day period, contained the following recital:

“Upon the affidavit hereto annexed; and upon all the proceedings had in the above entitled actions, from which it satisfactorily appears that cause exists for extending the time for hearing and deciding the motions for new trials in said actions, and the court being fully advised in the premises.

“It is therefore, ordered:

“That the time within which the various motions for new trial filed in the above entitled actions by the several parties shall be heard and decided, is hereby extended for a period of Sixty (60) days beyond the time otherwise provided.”

[1]If it were the intention of the parties to keep the cause for a continuance a secret, success marked their efforts. It can only be discovered by a search of the record. Good practice requires that the cause for extension should appear in the order. It seems incredible after what has been said that counsel will not obey the plain commands of the statute after it has been repeatedly pointed out in the decisions of this court that not only must there be good cause but the cause itself must be shown. A mere recital that an extension is granted for cause, for convenience or because some one wants it or some one stipulated that it be granted, is not a compliance with the statute.

Upon the argument in this Court the appellant Anderson moved for reversal because the order granting a new trial was not decided within sixty days from the rendition of the verdict, no valid order extending the time having been made as required under Sec. 270.49. This motion raises the following question: It appearing from the record that the motions for a new trial on the minutes of the judge and for misconduct of the jury were being considered together and it appearing that it was necessary to adjourn the hearing in order to procure the attendance of witnesses with respect to the alleged misconduct of the jurors and the order extending the time containing a recital that it is made upon the affidavit, the record and the proceedings in the case, does the cause for adjournment sufficiently appear of record so that there is a compliance with the statutory provision? If the procuring of witnesses to testify with reference to the alleged misconduct of the jurors was a cause, then the cause did not continue for a second sixty day period. The motions were heard and the examination completed on August 31. The court, however, did not make its decision until October 23 and the formal order denying a new trial was not entered until October 28.

In Beck v. Fond Du Lac Highway Committee, 1939, 231 Wis. 593,286 N.W. 64, 66, this matter was considered, prior cases cited and the court said: “The cases [citing] are all to the effect that good cause must be shown and that the order must recite facts which constitute good cause. It is our conclusion that good cause was not shown by the petition. All the petition amounts to is a statement that petitioner needs more time. This is a conclusion which omits the premises uponwhich it is based. The order itself contains no recitation even of the conclusion that good cause has been shown.”

[2]So important a statutory provision as Sec. 270.49 should be carefully complied with. It was enacted by the legislature for the purpose of requiring courts in the interest of a sound public policy to administer justice “promptly and without delay” in accordance with the constitutional mandate. Art. I, Sec. 9. Not infrequently cases come to this Court where the delay in reaching a final decision has been so great that there is in practical effect a denial of justice. The determinations of this Court are not based upon public clamor about delay in the administration of justice in the state of Wisconsin but upon the constitutional and statutory mandates.

It is possible that a review of the history of this statute may be helpful. This provision had its origin in ch. 120, sec. 174, Laws of 1856, which abolished existing forms of actions and established a uniform course of procedure. This section became sec. 16 of ch. 132, Stats.1858, and was as follows. “The judge who tries the cause may *** entertain a motion to be made on his minutes, to set aside the verdict, and grant a new trial, upon exceptions, or for insufficient evidence, or for excessive damages; but such motions in actions hereafter tried, if heard upon the minutes, can only be heard at the same term or circuit at which the trial is heard.”

By the revision in 1878, this section became sec. 2878 with slight immaterial verbal changes. Sec. 2878 was amended by ch. 100, Laws of 1901, by adding: “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.”

The section was amended by ch. 477, Laws of 1917, which substituted for the term provision the following: “But such motion if heard upon the minutes must he made and heard within 60 days after the verdict is rendered, unless the court by order shall extend such time for cause.”

At the same time the statute was further amended by ch. 477, Laws of 1917, the following sentence being added: “If such motion be made, but not decided during said sixty days or within such time as the court shall have fixed in such extension, then such motion shall be taken as overruled, and an exception to such constructive denial of the same shall be allowed in the bill of exceptions.”

[3]The emphatic language of the 1917 amendment which requires the motion to be made and heard within sixty days or within the extended time was due no doubt to the fact that under the statute as it formerly stood, the time might be...