Graf v. Gerber

• Decision Date: 05 January 1965
• Citation: Graf v. Gerber, 131 N.W.2d 863, 26 Wis.2d 72 (Wis. 1965)
• Parties: Lothar W. GRAF, Appellant, v. Franz GERBER, Respondent.
• Court: Wisconsin Supreme Court

Page 863

131 N.W.2d 863

26 Wis.2d 72

Lothar W. GRAF, Appellant, v. Franz GERBER, Respondent.

Supreme Court of Wisconsin.

Jan. 5, 1965.

Arthur DeBardeleben, Park Falls, for appellant.

Thomas W. Duffy, Hayward, Victor O. Tronsdal, Eau Claire, of counsel, for respondent.

CURRIE, Chief Justice.

The two issues presented by this appeal are:

(1) Is the order appealed from void because not filed within two months after the rendering of the jury's verdict?

(2) If the foregoing question be answered in the affirmative, should this court exercise its discretion under sec. 251.09, Stats., to grant a new trial in the interest of justice?

VALIDITY OF ORDER.

Sec. 270.49, Stats., provides that a motion after verdict, 'if not decided within the time allowed therefor, shall be deemed overruled.' This statute further provides that such a motion must be made and heard within two months after the verdict is rendered unless the court by order made before the expiration of the two-month period extends the time for cause. Here there was no order made extending time and the order granting a new trial, while dated within two months after the rendering of the verdict, was not filed with the clerk of court until after the expiration of the allotted two-month-period. Therefore, the validity of the order turns on the narrow issue of whether filing within the time allotted for decision is a necessary requisite.

This court has previously held that the statute requiring the trial court to decide motions after verdict within the allotted period, is complied with if the memorandum decision passing on such motions is filed within such time, even though the order for new trial is not filed until after expiration thereof. Guptill v. Roemer (1955), 269 Wis. 12, 68 N.W.2d 579, 69 N.W.2d 571. It has also been held that, if the trial court's decisions on motions after verdict is given verbally from the bench in open court within the allotted period, it is timely even though not transcribed and filed until after this period has expired. Flippin v. Turlock (1964), 24 Wis.2d 49, 127 N.W.2d 822. In the instant case, however, the decision was neither pronounced in open court nor filed within the time fixed by sec. 270.49, Stats. It is our considered opinion if the decision on motion to grant a new trial according to sec. 270.49 is not announced in open court within the statutory allotted time it will not be valid unless the written decision or order of the court deciding such motion either is filed or otherwise authenticated, ¹ or all parties adversely affected thereby are notified thereof, within such period.

In Yanggen v. Wisconsin Michigan Power Co. (1942), 241 Wis. 27, 4 N.W.2d 130, the issue was the validity of two orders extending time within which to decide motions after verdict. Each was dated within the period allotted by then sec. 270.49, for deciding motions after verdict but were filed after such period had expired. The court held these two orders to be ineffective, and in its opinion stated (at p. 32, 4 N.W.2d at p. 133):

'An order of the judge at chambers is ineffective until notice thereof has been served upon the opposite party or his attorney. Spaulding v. Milwaukee & Hor. R. R. Co., 1860, 11 Wis.

Page 157

For unlike an order made in open court, Kayser v. Hartnett, 1886, 67 Wis. 250, 30 N.W. 363, such an order would not apprise the opposite party of its existence. And an order made by a judge at chambers is not an order of the court. Day v. Buckingham, 1894, 87 Wis. 215, 58 N.W. 254. The informality and the uncertainty attendant upon the granting and filing of the orders and the length of the period during which they were not filed nor recorded prevents their recognition as valid and timely orders. Any other ruling would permit the judge to sign an order and thereafter carry it in his pocket until he was minded to have it properly entered of record.'

The rationale of the above quoted extract is deemed to apply with equal force to decisions or orders deciding motions after verdict. We determine, therefore, that the instant order granting a new trial is ineffective and void.

EXERCISE OF THIS COURT'S DISCRETION TO GRANT A NEW TRIAL.

In a situation such as this, where the trial court has determined that a new trial should be had in the interest of justice but the court's decision or order for a new trial is ineffective because of failure to comply with the requirements of sec. 270.49, Stats., this court deems it its duty to review the record to determine whether it should exercise its discretion under sec. 251.09, Stats. to order a new trial in the interest of justice.

'However, this court should not exercise its independent discretion to direct a new trial in every instance where we would be compelled to find no abuse of discretion on the part of the trial court in attempting to direct a new trial in the interest of justice, but in which the order is found to be defective for non-compliance with sec. 270.49(2). Our discretionary power in this respect should be sparingly employed, and ought not to be invoked except in a situation where we are convinced that there has been a probable miscarriage of justice if the jury's verdict were permitted to stand.' Cary v. Klabunde (1961), 12 Wis.2d 267, 270, 271, 107 N.W.2d 142, 144, 145.

On July 9, 1962, an altercation took place on plaintiff's farm between defendant and plaintiff in which defendant struck plaintiff causing the latter to fall to the ground. The testimony is in dispute as to whether defendant struck plaintiff only once or several times. Plaintiff testified that the surface of the ground where he fell consisted of rocks and gravel. That same day plaintiff sought medical attention from Dr. Krueger, a physician, at Hayward. The doctor found the following injuries upon examining plaintiff: A bruise over the left eye and the bridge of the nose; a bruise over the right side of the lower back in the sacro-iliac region; and a spot on the left knee which was sore and tender to pressure although there was no visible sign of injury. Plaintiff testified that he bled from a cut on the forehead. Dr. Krueger took X rays of the skull and pelvis region, which X rays were negative with respect to disclosing any bone injury. Dr. Krueger testified that he suggested plaintiff use cold compresses on the bruises and that he may have recommended aspirin for pain.

Plaintiff testified that the cut on his forehead healed in a month or two leaving a scar one-fourth to one-half inch in length in the crease between eye and nose; his back bothered him for about six weeks and after two months caused no further trouble; but he had a swelling on his knee and...