Kitchenmaster v. Mut. Auto. Ins. Co. of Town of Herman

• Decision Date: 15 February 1946
• Citation: 21 N.W.2d 727,248 Wis. 335
• Parties: KITCHENMASTER et al. v. MUTUAL AUTOMOBILE INS. CO. OF TOWN OF HERMAN.
• Court: Wisconsin Supreme Court

248 Wis. 335

21 N.W.2d 727

KITCHENMASTER et al.

v.MUTUAL AUTOMOBILE INS. CO. OF TOWN OF HERMAN.

Supreme Court of Wisconsin.

Feb. 15, 1946.

Appeal from a judgment of the County Court, Circuit Court Branch, of Shawano County; C. B. Dillett, Judge.

Motion to dismiss appeal denied.

Action by Walter Kitchenmaster and others against the Mutual Automobile Insurance Company of the Town of Herman for damages sustained in an automobile accident. From a judgment on a directed verdict, for defendant, plaintiffs appeal. On defendant's motion to dismiss the appeal.-[By Editorial Staff.]

Motion denied.This action was brought by the plaintiffs to recover for damages alleged to have been sustained in an automobile accident. At the close of the evidence the parties stipulated that if a motion by the defendant for a directed verdict should be made and overruled, the trial would then continue upon the sole question of the amount of damages. The motion for a directed verdict was made, granted and judgment was entered accordingly on May 31, 1945, from which the plaintiffs appeal. The defendant moves to dismiss the appeal.

Further facts will be stated in the opinion.

Michael Burns, of Seymour, and Fischer, Brunner & Strossenreuther, of Shawano, for plaintiffs.

Puhr & Peters, of Sheboygan, and M. G. Eberlein, of Shawano, for defendant.

ROSENBERRY, Chief Justice.

It is the contention of the defendant that the notice of appeal is fatally defective. A copy of the notice follows:

‘County Court

Shawano County

‘Circuit Court Branch

‘Walter Kitchenmaster and Leslie Kitchenmaster, by his general guardian, Walter Kitchenmaster, Plaintiffs, v. Mutual Automobile Insurance Company of the Town of Herman, Defendant.

‘To: Puhr & Peters, and M. O. Eberlein, of Counsel, Attorneys for said defendant, and to W. F. Kumm, Clerk of said Court:

‘Please take notice that Mutual Automobile Insurance Company of the Town of Herman appeals to the Supreme Court of the State of Wisconsin from the judgment made and rendered herein by the County Court, Circuit Court Branch of Shawano County, Wisconsin, and entered therein on the 31st day of May, 1945.

‘Dated August, 1945.

‘Michael Burns, and Fischer, Brunner & Strossenreuther

‘By L. J. Brunner, Attorneys for Plaintiffs.’

There was a motion on behalf of the plaintiffs to amend the notice by inserting the names of the plaintiffs instead of that of the defendant in the body of the notice. The applicable statutes are secs. 274.32 and 269.51, which are set out in the margin.¹

It is contended here that by stipulating as to the settlement of a bill of exceptions,the defendant brought itself within the provisions of sec. 269.51(1) relating to waiver. It is manifest that by the making of that stipulation the defendant did not participate ‘in any other proceedings in said appellate court.’ The Supreme Court has nothing to do with settlement of a bill of exceptions. That is a matter for the trial court.

In the case of Stevens v. Jacobs, 1937, 226 Wis. 198, 275 N.W. 555, 557,276 N.W. 638, the applicable part of sec. 274.32, Stats., was under consideration. The Court said:

‘The language of the statute above italicized indicates that the meaning of the statute is what where ‘notice of appeal’ has in good faith been ‘given,’ and any other act necessary to perfect the appeal has been omitted through mistake or accident, this court may permit an amendment to any defective paper or permit the act omitted that is necessary to ‘perfect the appeal’ to be done. The ‘any other act’ which the court may permit to be done is any act other than service of notice of appeal. Service of notice of appeal is an absolute prerequisite of appeal. It constitutes the appeal.' See also In re Estate of Pitcher, 1942, 240 Wis. 356, 2 N.W.2d 729.

It is difficult to see how it can be argued that this Court has jurisdiction to amend the notice of appeal unless a sufficient notice has been given. If the notice is sufficient to give the court jurisdiction to make an amendment no amendment is necessary. If the notice is insufficient to give the court jurisdiction, how can it act if it has no jurisdiction? There seems to be no answer to this question except the one given in Stevens v. Jacobs, supra. Once a sufficient notice is served within the period provided by statute, this court then has jurisdiction to correct the appeal in any other respect as provided in sec. 269.51.

Section 274.11(1) is as follows: ‘An appeal is taken by serving a notice of appeal, signed by the appellant or his attorney, on the adverse party and on the clerk of the court in which the judgment or order appealed from is entered, stating whether the appeal is from the whole or some part thereof, and if from a part only, specifying the part appealed from.’

Considering nothing but what appears upon the face of the notice, it is obvious that the insertion of the words ‘Mutual Automobile Insurance Company’ in the body of the notice is a clerical error and that upon consideration of the entire notice, it is clearly apparent that it is the plaintiffs and not the defendant that is appealing. If it is claimed that the Mutual Automobile...