Beck v. Wallmow

• Decision Date: 15 February 1938
• Citation: Beck v. Wallmow, 226 Wis. 652, 277 N.W. 705 (Wis. 1938)
• Parties: BECK v. WALLMOW et al.
• Court: Wisconsin Supreme Court

226 Wis. 652

277 N.W. 705

BECK

v.WALLMOW et al.

Supreme Court of Wisconsin.

Feb. 15, 1938.

Appeal from part of an order of the Circuit Court for Brown County; Henry Graass, Judge.

Reversed.

The action was commenced in the circuit court for Rock county, on September 10, 1936, by the plaintiff, Edna L. Beck, against the defendants, Nora Scanlon, as executrix of the will of Patrick J. Scanlon, deceased, and Farmers Mutual Automobile Insurance Company, Carl Wallmow, and Hardware Mutual Casualty Company, to recover damages sustained by her as a result of a collision between the Wallmow automobile in which she was riding as a guest and an automobile owned and operated at the time by Patrick J. Scanlon.Thereafter, it was stipulated that the venue of the action be changed to Brown county, where it was consolidated for purposes of trial with another action there pending.SeeLong et al. v. Wallmow et al., Wis., 277 N.W. 704, decided this day.The two actions were tried together to the court and a jury.On January 29, 1937, the jury returned a verdict which in substance, and so far as here material, found: That at the time and immediately prior to the collision Wallmow was negligent with respect to (a) failing to keep a proper lookout; (b) failing to have his automobile under control; (c) failing to yield the right of way; that the negligence of Wallmow in each of the respects found was a cause of the collision; that Patrick J. Scanlon was in no respect negligent; and that the plaintiff, Edna L. Beck, was not negligent.Upon the coming in of the verdict, the said plaintiff moved the court to change the answers which found that Scanlon was not negligent in respect to keeping a proper lookout, having his automobile under control and yielding the right of way; to answer the corresponding questions as to causation “yes,” upon the undisputed facts, and for judgment in her favor and against Nora Scanlon, as executrix, and Farmers Mutual Automobile Insurance Company, upon the verdict as so changed; and, in the alternative, to set aside the answers of the jury which found no negligence on the part of Scanlon and for a new trial, in the interest of justice, because the verdict on that issue was contrary to the evidence and contrary to law.The date of those motions was February 2, 1937.On February 12, 1937, the plaintiff further moved to set aside the verdict and for a new trial upon the additional ground of newly discovered evidence.In support of the latter motion, an affidavit, which will be referred to in the opinion, was submitted.The motions after verdict were argued on February 20, 1937.On that day, in open court and at the conclusion of the argument, Mr. Oestreich, the plaintiff's attorney, stated:

“In this Beck case, it is stipulated between the attorneys for the respective parties-I have no doubt that Mr. Trowbridge will agree to it-

“The Court: I guess Mr. Trowbridge and Mr. Bie will agree to it.

“Mr. Oestreich: It is stipulated between the attorneys for the respective parties, in open court, that the time within which the motions after verdict may be passed on and decided by the court, is extended for a period of sixty days in addition to the statutory time after the rendition of the verdict.”

The attorney for Nora Scanlon, executrix, and Farmers Mutual Automobile Insurance Company was present and apparently acquiesced in the stipulation as dictated into the record.But the trial court made no oral or written order extending the time for cause beyond the 60 days as required by law.

On May 24, 1937, the trial judge rendered his decision, and thereafter, on June 7, entered an order, dated June 1, which provided: That judgment be entered in favor of the plaintiff and against the defendantCarl Wallmow for $22,890.40, and against the Hardware Mutual Casualty Company for $5,000, together with the costs and disbursements of the action; that that part of the special verdict which exonerated Scanlon from negligence be set aside; that a new trial be granted on the issues between the plaintiff and the executrix and her insurance company, and between the defendant Wallmow and his insurance company, and the executrix and her insurance company on the issues raised by the cross-complaint.From that part of the order which set aside a part of the special verdict which exonerated Scanlon from negligence and ordered a new trial of said issues as between the plaintiff and the defendantsNora Scanlon, as executrix, and Farmers Mutual Automobile Insurance Company, and a new trial as to the issues raised by the cross-complaint of Carl Wallmow and Hardware Mutual Casualty Company against Nora Scanlon, as executrix, and Farmers Mutual Automobile Insurance Company, the said executrix and her said insurance company appealed.Sanborn, Blake & Aberg and Ernest H. Pett, all of Madison, and Young, Everson, Ryan & Hanaway, of Green Bay, for appellants.

Jeffris, Mouat, Oestreich, Wood & Cunningham, of Janesville (Frank P. Cornelisen, of Green Bay, of counsel), for respondent.

NELSON, Justice.

In the companion case, Long et al. v. Wallmow et al., Wis., 277 N.W. 704, decided this day, the trial judge ordered a new trial on the issues raised by the cross-complaint of the defendantsCarl Wallmow and Hardware Mutual Casualty Company against Nora Scanlon, executrix of the will of Patrick J. Scanlon, deceased, and Farmers Mutual Automobile Insurance Company.That order was reversed under rule 32, because neither Wallmow nor his insurance company appeared, filed, or submitted briefs, so the only question here is whether the order granting a new trial to the plaintiff as against Nora Scanlon, as executrix, and her insurance company, was properly made and entered.

It is undisputed that the jury returned its verdict on January 29, 1937; that the motion for a new trial on the judge's minutes was made on February 2, 1937; that an additional motion for a new trial, based on newly discovered evidence, was made on ...