Miller v. Belanger

• Decision Date: 05 March 1957
• Citation: 81 N.W.2d 545,275 Wis. 187
• Parties: John MILLER, a minor, by Ward Dunphy, his guardian ad litem, et al., Appellants, v. Curtis BELANGER et al., Respondents.
• Court: Wisconsin Supreme Court

Page 545

81 N.W.2d 545

275 Wis. 187

John MILLER, a minor, by Ward Dunphy, his guardian ad litem et al., Appellants, v. Curtis BELANGER et al., Respondents.

Supreme Court of Wisconsin.

March 5, 1957.

Truman Q. McNulty and Arlo McKinnon, Ward Dunphy, Milwaukee, guardian ad litem, for appellants.

Hayes & Hayes, Milwaukee, for respondents.

BROWN, Justice.

When John Miller, the minor plaintiff, was about four years old he was struck by an automobile driven by defendant Belanger. He, by his guardian ad litem, and his father, plaintiff Joseph Miller, sued Belanger and his insurance carrier for their respective damages. A jury found that Belanger was guilty of no causal negligence and judgment dismissing the complaint was entered January 24, 1956. Notice of entry of judgment was served on plaintiffs the next day.

Sec. 270.47, Stats., provides:

'After judgment is perfected either party may serve upon the other a written notice of the entry thereof; and service of a proposed bill of exceptions, by either party, must be made within ninety days after service of such notice. * * *'

The 90 days in this case would expire April 24, 1956. On April 21, 1956, plaintiffs secured an order from the trial court directing defendants to show cause on April 23rd why the time for serving the proposed bill of exceptions should not be enlarged by another 90 days. Plaintiffs' application for the order was supported by an affidavit of the guardian ad litem which informed the court that he had advised the parents of the minor plaintiff of the merits of an appeal and that an attempt to secure funds to finance an appeal is being made but the funds have not yet been obtained and more time to raise them is required; also that the court reporter is engaged in other work to such an extent that he would not have been able to make a timely transcript for a proposed bill of exceptions even if funds to pay for it had been promptly available. This latter allegation was denied by the affidavit of the reporter.

The trial court took the motion under advisement. The ninety days after service on plaintiffs of notice of entry of judgment ran out on April 24th, but the opposing parties continued until May 10th to procure additional affidavits and to file them with the court, beginning with one by Miller, Sr. This affidavit informed the court that Miller's living expenses and installment payments on debts amounted to $289.21 per month, not including $38 per month which another affidavit shows he pays on money borrowed from First Credit Corporation. Miller's affidavit states that his net income is approximately $315 per month and that First Credit Corporation has offered to increase his loan to finance an appeal. His affidavit does not state the terms on which the increase could be obtained, but it says that 'the only source from which he can obtain a loan with payments small enough to allow him to make payments would be the Butchers Credit Union from which he possibly [our italics] can make a loan through his employment at the Weisel Sausage Company; that he has not as yet received approval from the credit union', and 'that in the event that he obtains a loan he intends to appeal' this action.

The affidavit of the vice-president of Miller's employer states that in the period from January 1, 1956 to March 24, 1956, Miller's take-home pay averaged approximately $100 per week. (This is about $435 per month instead of the $315 alleged in Miller's affidavit.)

The affidavit of an official of First Credit Corporation said that on March 29, 1956, Miller, Sr. inquired about increasing his loan so as to finance an appeal from the judgment and was informed that this could be done at a cost of $51 per month. The loan was not made.

The affidavit of the treasurer of the Butchers Credit Union states that on April 30, 1956, Miller, Sr. inquired by telephone about a loan of $200 to $250 to finance an appeal but that he has made no written application for such a loan and has made no other inquiry.

The affidavits before the court, then, showed that Miller, Sr. had take-home pay of $435 per month and his monthly expenses, including payments on debts, are $327.21 and that he considered an additional payment of $51 per month to finance an appeal was beyond his means. They show, further, that after the expiration of 90 days from notice of the entry of judgment he first inquired about a loan by Butchers Credit Union but made no written application for one. The affidavits do not say upon what terms a loan there may be procured, nor do they show what terms would be acceptable to Miller, but tell the court only that there is a possibility that Butchers Credit Union will lend to him on terms which he can meet. He rejected the loan tendered by First Credit Corporation as too burdensome.

On June 14, 1956 the court denied the application for extension of time, saying 'Under the circumstances the court fails to see good cause in the record before it which would justify the court in granting the motion to extend the time to serve the Bill of Exceptions. The court is of the opinion that to grant this motion would be a clear abuse of discretion.' [Italics ours]

When an infant appears as a party to an action pending before a court, he becomes a ward of the court, and it is the duty of the court to see that the interest of its ward is protected. Will of Jaeger, 1935, 218 Wis. 1, 10, 259 N.W. 842, 99 A.L.R. 738. An order extending the time for settling a bill of exceptions is an appealable order. Briggson v. City of Viroqua, 1953, 264 Wis. 40, 45, 58 N.W.2d 543. It is a procedural order, not one affecting substantive rights. Id....