Bergen v. Schrodi

• Court: Wisconsin Supreme Court
• Writing for the Court: BEILFUSS
• Citation: Bergen v. Schrodi, 44 Wis.2d 19, 170 N.W.2d 698 (Wis. 1969)
• Decision Date: 30 September 1969
• Docket Number: No. 136,136
• Parties: Thomas J. BERGEN et al., Appellants, v. John SCHRODI, alias, et al., Respondents.

Page 698

170 N.W.2d 698

44 Wis.2d 19

Thomas J. BERGEN et al., Appellants, v. John SCHRODI, alias, et al., Respondents.

No. 136.

Supreme Court of Wisconsin.

Sept. 30, 1969.

The order appealed from, dated August 19, 1968, vacated and set aside a judgment rendered on August 5, 1968, in favor of the plaintiffs and allowed the proposed answer of the defendants to stand as an answer in the action.

The action is for damages for personal injuries, medical expenses, property damage and loss of consortium as a result of an automobile accident.

The defendants-respondents, the owner and the operator of a vehicle involved and their liability insurer, were served with a summons and complaint in March of 1968. An attempt to settle the claims was made by the defendant insurance carrier. This attempt was unsuccessful. None of the defendants had served an answer or notice of appearance.

A default judgment was taken and entered August 5, 1968. On August 6, 1968, the defendants obtained an order to show cause why the judgment should not be vacated because of the inadvertence and excusable neglect of the defendants. The order to show cause was returnable August 12, 1968. It was heard on that day and the motion to vacate the judgment was granted on August 19, 1968.

The plaintiffs appeal.

Ted B. Johnson, Milwaukee, for appellants.

David B. Halling, Milwaukee, for respondents.

BEILFUSS, Justice.

The defendants-respondents contend an order vacating or opening a default judgment is not a final order and, therefore, not appealable under sec. 274.33(2), Stats.

We agree with the respondents that the order is not final and is nonappealable and that the appeal must be dismissed. ¹

In Buckley v. Park Building Corp. (1965), 27 Wis.2d 425, 430, 134 N.W.2d 666, 669, it is stated:

'An order opening or vacating a judgment and permitting further proceedings is not a final order and, accordingly, not appealable under sec. 274.33(2), Stats., even though it affects a substantial right and is made, obviously, in an action after judgment.' ²

The fact that the order is not appealable does not mean that the plaintiffs-appellants could never have it reviewed in this court. If the plaintiffs appeal from the ultimate judgment the order can be reviewed as an intermediate order which involves the merits and affects the judgment. ³

The appellants contend that the trial court did not have jurisdiction of the subject matter by virtue of the insufficiency of the moving papers in support of the motion, and that when the trial court granted the motion to vacate the judgment it decided a question of jurisdiction which is appealable. The trial court was not required to decide a question of subject matter jurisdiction. Sec. 269.46(1), Stats., reserves to the court subject matter jurisdiction for a period of one year from the date of the entry of judgment and the right to vacate or open a judgment it has rendered upon a proper showing of mistake, inadvertence, surprise or excusable neglect, together with a proper proposed answer. If the trial court within the year grants a motion to vacate or open a judgment upon statutorily insufficient or inadequate moving papers it has committed an error of law (that can be corrected upon an appeal from a judgment finally rendered), but it has not acted beyond its jurisdiction. ⁴

Appeal dismissed.

1 We acknowledge the respondents' motion to dismiss, made...