Motowski v. People's Dentists of Wis.

• Decision Date: 08 April 1924
• Citation: 183 Wis. 477,198 N.W. 465
• Parties: MOTOWSKI v. PEOPLE'S DENTISTS OF WISCONSIN et al.
• Court: Wisconsin Supreme Court

183 Wis. 477

198 N.W. 465

MOTOWSKI

v.PEOPLE'S DENTISTS OF WISCONSIN et al.

Supreme Court of Wisconsin.

April 8, 1924.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by John Motowski against the People's Dentists of Wisconsin and another. From an order staying proceedings by plaintiff until compliance with prior order requiring him to make complaint more definite and certain and to pay costs of motion, dismissing proceedings as to one of the defendants, requiring plaintiff to pay other defendant $10 costs within specified period after service of order, and entitling other defendant to answer or otherwise plead within specified period, the plaintiff appeals. Appeal dismissed.

July 10, 1920, plaintiff brought this action to recover of the defendants on the ground of alleged improper and negligent dental services in the extracting of a tooth.

July 14 the individual defendant, Jesse A. Bowman, by his attorney, moved to make the complaint more definite and certain so far as he was concerned in order that he might plead. The order requiring plaintiff to show cause provided that all proceedings by plaintiff be stayed until the hearing of such motion, and that the time in which the defendants may answer be extended until 10 days after the final determination of such motion.

August 3, on the hearing an order was made that the complaint be made more definite and certain, and that within 10 days after the service of such order a copy of the complaint so amended be served, with $10 costs; also that the time for defendants to answer or otherwise plead be extended to 20 days after such service.

August 11 the plaintiff filed written exceptions to such order.

No further proceedings appear until October26, when plaintiff caused notice to be served on the defendant People's Dentists of Wisconsin and on the attorney for the individual defendant, of his purpose to apply on November 3 for judgment according to the prayer of the complaint as against the defendant corporation.

October 31 an affidavit of plaintiff's attorney in substance reciting that the defendant People's Dentists Company was in default and had in no manner appeared in said action was filed with the clerk of the circuit court.

October 30 the attorney for the defendants, by affidavit reciting the prior proceedings, obtained an order to show cause, returnable on November 2, why an order should not be made staying all proceedings on plaintiff's part until compliance with the previous order of the court, and for other and further relief.

Such action was heard November 2, and the plaintiff's counsel stated in open court that he elected not to amend said complaint, and then an order was made, in substance, as follows: First, that all proceedings by plaintiff be stayed until compliance wtih the prior order by paying the $10 costs therein provided; second, that the action be dismissed as against the individual defendant, Jesse A. Bowman, and all allegations concerning him be stricken from the complaint; third, that the plaintiff pay the defendant the People's Dentists of Wisconsin $10 costs within 10 days after service of the order; fourth, that the defendant corporation answer or otherwise plead within 10 days.

November 3 the defendant corporation interposed its verified answer.

November 26 the plaintiff appealed from the whole of the order of November 3.

Upon the appeal being regularly reached for hearing here, the appellant's counsel moved to continue the cause under our rule 46 because respondent's printed brief had not been served within the period fixed by such rules.

Edward A. Mock, of Milwaukee (F. H. Gugel and Lillian M. Kohlmetz, both of Milwaukee, of counsel), for appellant.

George A....