Borowicz v. Hamann

• Decision Date: 09 February 1926
• Citation: Borowicz v. Hamann, 189 Wis. 212, 207 N. W. 426 (Wis. 1926)
• Parties: BOROWICZ ET AL. v. HAMANN ET AL.
• Court: Wisconsin Supreme Court

189 Wis. 212

207 N.W. 426

BOROWICZ ET AL.

v.HAMANN ET AL.

Supreme Court of Wisconsin.

Feb. 9, 1926.

Appeal from Circuit Court, Brown County; Henry Graass, Judge.

Action by Adam Borowicz and another against A. C. Hamann and another.Special verdict rendered, and from an order giving plaintiffs election to take judgment in the sum of $4,000 or a new trial, plaintiffs appeal.Order appealed from reversed, and cause remanded, with directions.Otto P. Lehner, of Oconto Falls, Lynn D. Jaseph, of Green Bay, and Lehner & Lehner, of Oconto Falls, for appellants.

A. W. Foster, of Milwaukee, and Minahan, Minahan & Duquaine, of Green Bay, for respondents.

ROSENBERRY, J.

This action was begun by the plaintiffs against the defendants for damages resulting from a conspiracy to defraud.The transaction out of which the action arose related to an exchange of a farm owned by the plaintiffs for certain property situated in the city of Milwaukee and occurred on or about June 22, 1921.This action was begun April 26, 1923.There was a trial before the court and jury which resulted in a special verdict rendered December 17, 1923.The order granting a new trial from which order the appeal is taken was dated January 27, 1925.Upon the coming in of the verdict the plaintiffs moved the court for judgment upon the verdict in the alternative (1) for judgment on the special verdict in favor of the plaintiffs and against the defendants; (2) for judgment on the special verdict and on the evidence in favor of the plaintiffs and against the defendants for the sum of $16,000 damages.

Under date of January 3, 1924, the defendants made the following motion:

“(1) For judgment notwithstanding the special verdict of the jury rendered herein November 27, 1923, a copy of which is annexed hereto, dismissing the plaintiffs' complaint with costs.

If the foregoing motion be denied, then:

(2) That the answer to question 1 be changed from ‘Yes' to ‘No,’ the answers to questions 2 and 3 be stricken out, the answer to question 8 changed from ‘Yes' to ‘No,’ and for judgment upon the special verdict so amended and upon the uncontradicted evidence dismissing the complaint with costs.

(3) That the answers to subdivision (a) of question 4 respecting these defendants and each of them be changed from ‘Yes' to ‘No,’ the answers to subdivision (b) of question 4 respecting these defendants and each of them be changed from ‘Yes' to ‘No,’ the answers to subdivision (c) of question 4 respecting these defendants and each of them be changed from ‘Yes' to ‘No,’ the answers to questions 5, 6, 7, 8, and 9 be stricken out, and for judgment upon the special verdict so amended and upon the uncontradicted evidence, dismissing the complaint with costs.

(4) That the answers to questions 5, 6, and 7 (all subdivisions thereof) be changed from ‘Yes' to ‘No,’ and for judgment upon the special verdict so amended and upon the uncontradicted evidence dismissing the complaint with costs.

(5) That the answers to question 2 as to these defendants and each of them be changed from ‘Yes' to ‘No,’ and the answer to question 3 as to these defendants be stricken out; and for such other further or different relief with respect to the answers of said special verdict and every part thereof as may be met in furtherance of justice.

If the motions of any of these defendants for judgment be all denied, then such defendants move in the alternative.

(6) That the verdict herein be set aside and for a new trial: A.In furtherance of justice.B.Because the court erred in submitting to the jury questions 1, 2, and 3.C.Because the court erred in submitting to the jury subdivision (b) of question 4.D.Because the court erred in submitting to the jury subdivision (b) of question 4.E.Because the court erred in submitting to the jury subdivision (c) of question 4.F.Because the court erred in submitting the question subdivision (c) of question 4, as to the form thereof, in that it omits to state the rental yield of $208.00 monthly admittedly disclosed to plaintiffs.G.Because the court erred in submitting question 9 as to the form thereof, in the manner indicated in defendants' exceptions preserved.H.Because the court erred in submitting question 11 to the jury.I.Because the verdict is contrary to law.J.Because the verdict is contrary to the evidence.K.Because the answers of the jury to the eleventh question and to subdivision (a) of the fourth question are inconsistent, and the verdict perverse.L.Because the court failed and refused to include in the special verdict submitted the questions proposed upon the trial by these defendants, to which exceptions were preserved.”

Question 11 of the special verdict referred to in subdivision K of the defendants' motion found that the reasonable market value of the Milwaukee property, if it had been as represented by the defendants, was $27,000.Question 10 found the reasonable market value of the plaintiffs' farm in June, 1921, to be $21,000 and the plaintiffs' personal property conveyed in June, 1921, $4,000.

On January 11, 1924, the court, upon its own motion, entered the following order:

“This action having been tried at this term before a jury, and a special verdict having been rendered herein, and motions having been made and filed by both parties, the defendantsA. C. Hamann, Scheuer & Tiege, Joseph F. Scheuer, having moved, among other things upon the judge's minutes, to set aside the verdict and grant a new trial, and such motions not yet having been heard or determined, and the 60 days limited by statute not having elapsed, and there being good cause therefor, it is ordered that the time for hearing and determining the motions herein, including the motion for a new trial, be and the same is hereby extended for cause to the 1st day of April, 1924.”

To this order the plaintiffs duly excepted.Like orders to which plaintiffs excepted were entered on March 29, 1924, April 26, 1924, June 23, 1924, July 30, 1924, August 25, 1924, September 22, 1924--except that the order of September 22d included other cases--October 20, 1924, November 28, 1924, December 29, 1924, and January 27, 1925, which last order extended the time to March 17, 1925.Under date of February 14, 1925, the circuit judge filed an opinion, which, with the statement of facts also written by the court, consisted of 15 single spaced typewritten pages, in which it was held that plaintiffs were not damaged over $4,000 and that was the outside sum that a fair-minded and reasonable jury would have found by its answers under the circumstances.The order was entered February 26, 1925, under date of February 23, 1925, to which the plaintiffs duly excepted and from which the plaintiffs appeal.

The material parts of the order appealed from are as follows:

“That plaintiffs may at their option take judgment against the defendantsA. C. Hamann, Scheuer & Tiege, Joseph F. Scheuer, and James McKenna in the sum of $4,000, with costs, such option to be exercised by filing an election in writing on or before March 16, 1925, serving a copy thereof upon counsel for defendants at the time of filing, or have a new trial, and in the event of the failure or refusal of plaintiffs on or before March 16, 1925, to take such judgment, that the verdict herein be thereupon and without further order set aside and a new trial granted; that the several motions after verdict inconsistent herewith be and are hereby denied.”

From this order the plaintiffs appeal and the first question raised is whether or not the court had authority or jurisdiction on the date on which the order was entered to grant a new trial.Section 270.49,Wis. Stats. 1925(formerly section 2878), provides:

“The judge before whom the issue is tried, may, in his discretion, entertain a motion to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions or because the verdict is contrary to law or contrary to evidence, or for excessive or inadequate damages or in the interests of justice; but such motion if heard upon the minutes must be made and heard within sixty days after the verdict is rendered, unless the court by order shall extend such time for cause.”

[1] As already recited, the court, in this case, attempted to extend the time under the provisions of this statute, and it is not claimed that, if the 12 orders were not effective for that purpose, the motion was made and heard within the time fixed by statute, and unless so made the motion for a new trial is deemed constructively denied.Notbohm v. Pallange, 168 Wis. 225, 169 N. W. 557.

All of the orders extending the time are in the form already set out containing the recital “and there being good cause therefor” and the words “for cause” in the order itself.This statute has been many times before this court, but in no case has the situation presented by the facts in this case been under consideration.

It is to be noted that the statute does not provide that extension shall be granted “for cause shown.”No doubt the language of the section was intended to imply that cause for extension of the time for which the order might be granted might exist which did not affect the parties to the action, as illness of the judge, delay in procuring transcript of the reporter's notes, press of judicial duties, or other like matters might constitute justifiable cause.Such cause would not be within the knowledge of either of the parties.On the other hand, the parties might ask for an extension of time in order to prepare and file briefs or on account of illness of counsel or for other adequate reasons.While there are cases in which the meaning of the words “for cause” or “for cause shown” are considered,...