Metron Steel Corp. v. Alby Mfg., Inc., 259

• Decision Date: 29 February 1972
• Docket Number: No. 259,259
• Citation: 54 Wis.2d 67,194 N.W.2d 608
• Parties: METRON STEEL CORP., Plaintiff, v. ALBY MFG., INC., Defendant. UNITED STATES of America, Appellant, v. Raymond BURCZYK, Recr. for Alby Mfg., Inc., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 608

194 N.W.2d 608

54 Wis.2d 67

METRON STEEL CORP., Plaintiff, v. ALBY MFG., INC., Defendant.

UNITED STATES of America, Appellant, v. Raymond BURCZYK, Recr. for Alby Mfg., Inc., et al., Respondents.

No. 259.

Supreme Court of Wisconsin.

Feb. 29, 1972.

Rehearing Denied May 4, 1972.

On October 18, 1968, plaintiff Metron Steel Corporation, in an action against defendant Alby Manufacturing, Inc., moved to have a receiver appointed under ch. 128, Stats., for the administration of the assets of defendant Alby Manufacturing, Inc. The court, by order dated November 8, 1968, appointed respondent Raymond Burczyk as receiver of defendant's assets. Notice of the receivership was given to all creditors of defendant, and a number of claims were filed, including those of respondent village of Waterford (hereinafter 'village'), for unpaid personal property taxes in the amount of $9,076.16, and respondent department of industry, labor and human relations (hereinafter 'department), which claimed $3,199.30 for unemployment compensation taxes. These claims were entered on January 14 and January 24, 1969, respectively. On February 26, 1969, the United States filed a claim for $23,283.90 in unpaid taxes. The notice of claim called attention to R.S. § 3466, 31 U.S.C.A., sec. 191 (1954), which gives priority to the claims of the United States against an insolvent debtor, and to R.S. § 3467, 31 U.S.C.A., sec. 192 (1954), which imposes personal liability on a receiver who refuses to honor the government's priority claim. The claim of the United States was later amended to include interest, increasing the amount to $23,837.31.

The trial court ordered an appraisal of the assets, which were found to have a value of approximately $17,160. By order, dated January 29, 1969, the court authorized the receiver to sell the assets, $17,500 having been offered for them. Thereafter on May 5, 1969, and on May 9, 1969, the court ordered the receiver to pay $3,199.30 to the department to satisfy its claim; in addition, on May 8, 1969, an order was entered directing the receiver to pay the sum of $3,901.19 to the village. No appeal was taken from these orders.

On September 24, 1970, the receiver filed a petition for approval of his final account. At that time, he held $13,678.52. Following allowance of administrative expenses in the amount of $6,260.79, the remaining $7,417.73 was ordered distributed to appellant United States; and the receiver's account was approved by the court on October 26, 1970. A notice of appeal was filed by the United States government on November 25, 1970. The appeal was taken from a part of the order 'entered on the 26th day of October, 1970, confirming the acts of the Receiver insofar as they relate to the distribution of funds used to satisfy priority creditor claims of the (village) . . . and the (department).'

Fred B. Ugast, Acting Asst. U.S. Atty. Gen., Meyer Rothwacks, Elmer J. Kelsey, Charles E. Anderson, Tax Div., Dept. of Justice, Washington, D.C. (David J. Cannon, U.S. Atty., Steven C. Underwood, Asst. U.S. Atty., Milwaukee, of counsel), for appellant.

Howard, Peterman & Eisenberg, Milwaukee, for Burczyk.

Arnold J. Spencer, W. H. Putnam, Madison, for DILR.

Johnson & Bremer, James F. Bremer, Waterford, for Village of Waterford.

HANLEY, Justice.

Two issues are presented on this appeal:

(1) Is the order of October 26, 1970, insofar as it reviews and confirms the orders of May 5, 1969, and May 9, 1969, an appealable order; and

(2) Did the trial court err in directing payment of the claims of the department and the village prior to satisfying the claim of the United States?

Appealability of Order.

The village and the department made a special appearance in this appeal to contend that the appeal should be dismissed inasmuch as it was not timely filed. This contention was presented to this court by a motion to dismiss the appeal prior to oral argument. The motion was denied, without prejudice, however, and the issue is again presented for consideration.

There is no right under either the common law or the state constitution 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 the appeal on its own motion, if need be. Estate of Boerner (1970), 46 Wis.2d 183, 188, 174 N.W.2d 457. In addition, the legislature has the power to limit not only the subject matter of an appeal, but the time in which an appeal may be taken. If an appeal is not timely under the statutes, a motion to dismiss should be granted. Bublitz v. Matulis (1967), 34 Wis.2d 23, 24, 148 N.W.2d 64. If, however, the party entitled to dismissal makes no motion to dismiss, but participates in the appeal, he has waived his right to object to the timeliness of the appeal. Barnard v. Coates (1965), 28 Wis.2d 1, 7, 8, 135 N.W.2d 809; Vande Hei v. Vande Hei (1968), 40 Wis.2d 57, 63, 161 N.W.2d 379. By their timely motion and special appearance, the village and the department have protected their right to dismissal if the appeal is not, in fact, timely.

Respondents assert that this appeal was not filed within the time allowed by the statutes. Sec. 128.15(1), Stats., limits the time to appeal from an order disposing of objections to claims in a receivership to thirty days. Likewise, a thirty-day limitation is placed on appeals from an order of the court settling the accounts of a receiver under sec. 128.20(2), Stats. However, these statutes do not apply to the United States, since its claim is for taxes. This court, in In re Assignment of Milwaukee Sheep & Wool Co. (1925), 186 Wis. 320, 329, 202 N.W. 693, 696, differentiated between the claim of a unit of government for unpaid taxes and the claims of general creditors:

'. . . (W)hile the taxes involved have been heretofore generally referred to as a prior claim, they are not a claim in the same sense as are claims of general creditors. They do not involve the element of debt as do claims of general creditors, but are imposed by the government to raise funds to defray its expenses. They lack the contractual element of general claims of creditors; therefore they need not be filed. . . . From this it follows that the town's right to appeal does not spring from the provisions of section 1701 of the Statutes, but from the statutes on appeal in civil actions generally.'

Therefore, it appears that the timeliness of the appeal by the United States must be determined under sec. 274.01(1), Stats., which limits the time for appeal to three months from service of a notice that the order has been entered, or to six months from the date the order is entered, if no notice of entry is served. In this case, the United States was not notified that any orders were entered; the six-month limitation would therefore apply. Hence, an appeal from the October 26, 1970, order approving the receiver's accounting would be timely, since the notice of appeal was filed on Novenber 25, 1970. However, if, as respondents contend, this appeal is actually taken from the orders of May, 1969, which directed the...