Donny v. Chain of Lakes Cheese Co.
| Decision Date | 15 December 1948 |
| Citation | 254 Wis. 85,35 N.W.2d 333 |
| Parties | DONNY et al. v. CHAIN OF LAKES CHEESE CO. et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the County Court of LaFayette County; Floyd E. Olson, County Judge.
Appeal dismissed.
Action on contract by Melchior Donny, doing business as the Donny Cheese Factory Equipment Company, and William Yardley, W. A. Yardley and Harry L. Rickard, partners, doing business as the Yardley Box Company, against the Chain of Lakes Cheese Company, a corporation; John Friedli; and Abraham Cohen, Ira Slocum and John Friedli, partners, doing business as the Chain of Lakes Cheese Company, wherein defendant John Friedli counterclaimed against plaintiff Melchior Donny. From an adverse judgment, Melchior Donny appealed. On defendants' motion to dismiss the appeal.-[By Editorial Staff.]
Motion granted.
This action was commenced on the 26th day of January, 1948, by the plaintiffs named above against the Chain of Lakes Cheese Company, John Friedli, and Abraham Cohen, Ira Slocum and John Friedli, partners, doing business as the Chain of Lakes Cheese Company. The action was on contract and the plaintiffs alleged that the defendants or some of them in the alternative were liable. The defendants answered and denied liability and the defendant John Friedli counterclaimed against the plaintiff Melchior Donny. There was a trial. The court found in favor of the defendants and against the plaintiffs and judgment was entered on April 21, 1948, as follows:
‘Now Therefore, It is Ordered and Adjudged, that the defendant John Friedli do have and recover of the Plaintiff Melchior Donny the sum of Twenty-nine and 22/100 ($29.22) Dollars together with the sum of $151.05 his taxable costs and disbursements in this action making in all the sum of $180.27.
‘It is further Ordered and Adjudged that the verdict of the jury be and hereby is vacated and set aside and the complaint of Plaintiffs against the said Defendants be and hereby is dismissed upon the merits.’
L. A. Koenig was attorney for all the plaintiffs in the county court. On the 19th day of July, 1948, the attorney for the plaintiffs served a notice of appeal, which was in the following form:
‘Please take notice that the plaintiff, Melchior Donny, hereby appeals to the Supreme Court of the State of Wisconsin from the judgment rendered by the above named court herein, entered on the 23rd day of April, 1948, (1) in favor of in defendant, John Friedli, and against the plaintiff, Melchior Donny, for the sum of Twenty-nine and 22/100 ($29.22) Dollars damages and One Hundred Fifty-one and 5/100 ($151.05) Dollars costs; and (2) vacating and setting aside the verdict of the jury and dismissing the complaint of the plaintiffs against the defendants upon the merits; and from the whole thereof. Dated this 19 day of July, 1948.
L. A. Koenig
Attorney for the Plaintiffs.'
Donny had no right to appeal for his coplaintiffs and did not even attempt to do so.
The record was filed in this court August 7, 1948.
On the 3rd day of November, 1948, counsel for the defendants moved to dismiss the appeal on the ground that the notice of appeal had not been properly served. There were other motions in the case which, in the view we take of the matter, it is not necessary to consider. Other facts will be stated in the opinion.
L. A. Koenig, of Monroe (Fitzgibbons & Elmer, of Monroe, of counsel), for appellant.
Boyle & Boyle, of Darlington, for respondent.
It will be noted that the only one of the plaintiffs who appealed or attempted to appeal from the judgment was Melchior Donny. Although the notice of appeal is signed by Attorney Koenig as attorney for all the plaintiffs, Donny's coplaintiffs did not join in the appeal, and the question is: Was it necessary for the notice of appeal to be served upon the plaintiffs William Yardley, W. A. Yardley and Harry L. Rickard?
It is the contention of counsel for the appellant Donny that because he represented the other plaintiffs on the trial and signed the notice of appeal that service upon the other plaintiffs was not necessary. It is considered that this contention cannot be sustained. App...
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In re Estate of Flaws
...have subsequently been endorsed in Box Elder Cnty. v. Harding, 83 Utah 386, 28 P.2d 601, 602 (1934) and Donny v. Chain of Lakes Cheese Co., 254 Wis. 85, 35 N.W.2d 333, 334 (1948). [¶ 13.] Despite the concerns mentioned by the dissent in Weeter, we are persuaded by the logic of the majority ......
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Metron Steel Corp. v. Alby Mfg., Inc., 259
...to appeal to this court. That right is given only by statute and only to the extent allowed in the statute. Donny v. Chain of Lakes Cheese Co. (1948), 254 Wis. 85, 88, 35 N.W.2d 333. Where there is no statutory right to appeal, this court lacks subject matter jurisdiction and must dismiss t......
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Falk v. Industrial Commission
...In re Estate of Fish, 200 Wis. 61, 227 N.W. 272; Stevens v. Jacobs, 226 Wis. 198, 275 N.W. 555, 276 N.W. 638; Donny v. Chain of Lakes Cheese Co., 254 Wis. 85, 35 N.W.2d 333. And that consequently an appellant's failure to serve notice of his appeal on one of the parties whose interest is ad......
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City of Mequon v. Bruseth
...in this dissent. 1 See Milwaukee County v. Caldwell (1966), 31 Wis.2d 286, 143 N.W.2d 41; see generally, Donny v. Chain of Lakes Cheese Co. (1948), 254 Wis. 85, 35 N.W.2d 333.2 See Estate of Reynolds (1964), 24 Wis.2d 370, 129 N.W.2d 251; Ramminger v. State Highway Comm. (1963), 22 Wis.2d 1......