Burling v. Burling
| Decision Date | 07 May 1957 |
| Parties | Hugh L. BURLING, Respondent, v. Shirley Ryan BURLING, Appellant. |
| Court | Wisconsin Supreme Court |
A. D. Sutherland, Fond du Lac, for appellant.
Lehner & Lehner, Princeton, for respondent.
At common law, and in early years under the code, a plaintiff had the absolute right to discontinue an action before or after issue joined and without leave of court. Bertschy v. McLeod, 32 Wis. 205, 210. Later decisions, however, recognize certain qualifications upon plaintiff's right to discontinue. Leave to discontinue may be denied, in the discretion of the court, if the rights of defendant, third parties, or the public will be substantially prejudiced by discontinuance. State ex rel. City of Milwaukee v. Ludwig, 106 Wis. 226, 233, 82 N.W. 158; School District No. 11 of Town of Madison v. Clifcorn, 133 Wis. 465, 467, 112 N.W. 1099; Anderson v. Horlick's Malted Milk Co., 137 Wis. 569, 572, 119 N.W. 342; Guinther v. City of Milwaukee, 217 Wis. 334, 258 N.W. 865, 103 A.L.R. 1249. In a divorce action it has been held that plaintiff husband was not entitled to an unconditional discontinuance, but the court had discretion to require him to pay the reasonable expenses incurred in defense of the action as a condition. Schulz v. Schulz, 128 Wis. 28, at page 31, 107 N.W. 302.
Because plaintiff's right to discontinue is not absolute, and it is the duty of the court to exercise discretion, we consider that a plaintiff's motion for dismissal should be heard upon notice. There was no notice to defendant in the case before us, and the order of dismissal must therefore be reversed. We conclude that plaintiff's motion for dismissal will still be before the circuit court, to be heard upon notice. Defendant will thus have an opportunity to present her position to the circuit court. She has asserted here that she is prejudiced by the dismissal because (1) her motion that plaintiff be adjudicated in contempt has not been decided, (2) she has had no opportunity to refute charges made against her in connection with plaintiff's motion for a blood test, and (3) she has not been awarded costs. We leave the merits of these assertions to the circuit court.
The notice of appeal included the 'failure' of the circuit court to act on two matters. In a proper case, upon proper application for exercise of the superintending control of this court over others, an appropriate writ may be issued compelling a circuit court to...
To continue reading
Request your trial
-
State v. Lee
...plaintiff's absence from court on day appointed for trial resulted in inconvenience to the defendant and the jury); Burling v. Burling, 275 Wis. 612, 82 N.W.2d 807 (1957) (upholding circuit court's refusal to grant plaintiff's motion to dismiss in a divorce action, noting, inter alia, that ......
-
State ex rel. Freeman Printing Co. v. Luebke
...common law. A nonsuit is granted in the discretion of the court when it has no prejudicial effect on the other party. Burling v. Burling (1957), 275 Wis. 612, 82 N.W.2d 807; Caley v. Flegenheimer (1959), 8 Wis.2d 72, 98 N.W.2d 473. The granting of his motion by the trial court involved the ......
-
Russell v. Johnson
...v. Donohue, 1960, 11 Wis.2d 517, 520, 105 N.W.2d 844.8 See Kling v. Sommers, 1948, 252 Wis. 217, 220, 31 N.W.2d 206.9 Burling v. Burling, 1957, 275 Wis. 612, 82 N.W.2d 807.10 Boutin v. Andreas, 1915, 161 Wis. 152, 152 N.W. 822.11 French v. Continental Assur. Co., 1938, 227 Wis. 203, 278 N.W......
-
Caley v. Flegenheimer
...dismissal without prejudice. Obermeier v. Milwaukee Electric Ry. & Light Co., 1922, 177 Wis. 490, 495, 188 N.W. 603; Burling v. Burling, 1957, 275 Wis. 612, 82 N.W.2d 807. Therefore, the motion was addressed to the discretion of the circuit court. Under the circumstances, we think that the ......