August Schmidt Co. v. Hardware Dealers Mut. Fire Ins. Co.

• Decision Date: 02 March 1965
• Citation: 26 Wis.2d 517,133 N.W.2d 352
• Parties: AUGUST SCHMIDT CO., a corporation, Plaintiff-Appellant, v. HARDWARE DEALERS MUTUAL FIRE INSURANCE CO., a corporation, and Manitowoc Mutual Fire Insurance Company, a corporation, Defendants-Respondents. AUGUST SCHMIDT CO., a corporation, Plaintiff-Appellant, v. NEW HAMPSHIRE FIRE INSURANCE COMPANY, a corporation, and Springfield Fire and Marine Insurance Company, a corporation, Defendants-Respondents. Hazel E. SCHMIDT, individually, and as executrix of the Estate of August Schmidt, deceased, and August Schmidt Co., a corporation, Plaintiffs-Appellants, v. HARDWARE DEALERS MUTUAL FIRE INSURANCE CO., a corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 352

133 N.W.2d 352

26 Wis.2d 517

AUGUST SCHMIDT CO., a corporation, Plaintiff-Appellant, v. HARDWARE DEALERS MUTUAL FIRE INSURANCE CO., a corporation, and Manitowoc Mutual Fire Insurance Company, a

corporation, Defendants-Respondents.

AUGUST SCHMIDT CO., a corporation, Plaintiff-Appellant, v. NEW HAMPSHIRE FIRE INSURANCE COMPANY, a corporation, and Springfield Fire and Marine Insurance Company, a

corporation, Defendants-Respondents.

Hazel E. SCHMIDT, individually, and as executrix of the

Estate of August Schmidt, deceased, and August

Schmidt Co., a corporation, Plaintiffs-Appellants, v. HARDWARE DEALERS MUTUAL FIRE INSURANCE CO., a corporation,

Defendant-Respondent.

Supreme Court of Wisconsin.

March 2, 1965.

Lichtsinn, Dede, Anderson & Ryan, Milwaukee, for appellants.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Norman C. Skogstad and Richard E. Sommer, Milwaukee, of counsel, for respondents.

HALLOWS, Justice.

At the outset we are met with the defendants' objection that the plaintiffs have not perfected their appeal. The appeal is from what is designated an 'Order on Motions after Verdict as to Liability' which in the plaintiffs' brief is characterized as an interlocutory judgment. The order grants the defendants' motion for a judgment dismissing the complaints and is not an appealable order under sec. 273.33, Stats. Lentz v. Northwestern Nat. Casualty Co. (1963), 19 Wis.2d 569, 120 N.W.2d 722. The order is not a judgment, intermediate or final. However, after the notice of appeal was served a judgment dismissing the complaints was entered on July 8, 1964, and is before this court is a supplemental return requested by this court. Under sec. 274.11 (4), Stats., this court has jurisdiction of the subject matter of an appeal upon the entry of an appealable judgment. Under sec. 269.51, Stats., dealing with the waiver of irregularities and lack of jurisdiction on appeal, we have held that the formalities involved in an appeal, such as proper notice, relate only to the question of this court's jurisdiction over the parties, not the subject matter of the appeal. The language in Taster v. Miller (1955), 269 Wis. 223, 69 N.W.2d 265, relied on by the defendants, to the effect that parties cannot either by failure to raise the question or by consent confer jurisdiction upon this court to review an order which is not appealable has been qualified by the amendment to sec. 274.11(4) and by recent decisions of this court. It is now established that although no proper notice of appeal has been served if an appealable order or judgment has been entered a respondent by participating in this court in the review of the merits of the judgment without making an appropriate and timely objection to the jurisdiction over his person waives the objection. Estate of Burns (1964), 23 Wis.2d 175, 127 N.W.2d 239; Baumgarten v. Jones (1963), 21 Wis.2d 467, 124 N.W.2d 609; Town of Madison v. City of Madison (1960), 12 Wis.2d 100, 106 N.W.2d 264; Asen v. Jos. Schlitz Brewing Co. (1960), 11 Wis.2d 594, 106 N.W.2d 269. Here, a stipulation was entered into continuing these cases until the hearing and determination had been had in the companion case of Schmidt v. Chapman, supra. A stipulation was made extending the time to serve the respective briefs. No motion was made to dismiss the appeal and the question is raised for the first time in the defendants' briefs. The defendants have waived the objection.

This appeal could be decided on the ground that the judgment which was entered dismissing the actions was requested by the plaintiffs and therefore under sec. 270.39, Stats., they have no standing on appeal. See Fox v. Kaminsky (1942), 239 Wis. 559, 2 N.W.2d 199; First Wisconsin Trust Co. v. Schmidt (1921), 173 Wis. 477, 180 N.W. 832; Ferry v. State (1954), 266 Wis. 508, 63 N.W.2d 741. It is clear from the record the plaintiffs moved after verdict to amend their complaint to conform to the proof in the case against the Hersh Construction & Engineering Co. and to enter a judgment dismissing the complaints in these cases on their merits. However, the trial court in its decision on motions after verdict stated that it granted the motion of the defendant insurance companies in these cases for a judgment dismissing the complaints and the order so states. On this state of the rocord we prefer not to place the disposition of the appeal on this ground but to consider the merits of the substantive issues raised.

Plaintiffs argue that these cases involving insurance policies should not have been consolidated with the negligence case against Chapman, Hersh, and Saltzmann. The plaintiffs as a matter of right are not entitled to have this question reviewed because they failed to move for a new trial on such ground. Presser v. Siesel Construction Co. (1963), 19 Wis.2d 54, 119 N.W.2d 405; Clements v. Mutual Service Casualty Ins. Co. (1961), 13 Wis.2d 549, 109 N.W.2d 98; Michalski v. Wagner (1960), 9 Wis.2d 22, 100 N.W.2d 54; Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 80 N.W.2d 380. We point out, however, the consolidation of cases for the purpose of trial rests largely in the discretion of the trial court and is usually granted in the administration of justice when no prejudice will result from trying the several cases together. Keplin v. Hardware Mut. Casualty Co. (1964), 24 Wis.2d 319, 129 N.W.2d 321, 130 N.W.2d 3; Freuen v. Brenner (1962), 16 Wis.2d 445, 114 N.W.2d 782; Braun v. Wisconsin Electric Power Co. (1959), 6 Wis.2d 262, 94 N.W.2d 593. In these cases the same facts which gave rise to a question of negligence in the one...