Mueller v. Brunn

• Decision Date: 05 January 1982
• Docket Number: No. 80-1227,80-1227
• Citation: 313 N.W.2d 790,105 Wis.2d 171
• Parties: Albert R. MUELLER and Delores J. Mueller, his wife, Plaintiffs-Respondents-Petitioners, v. Donald B. BRUNN and Marion F. Brunn, his wife, Defendants, Town of Vernon, a municipal corporation, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 790

313 N.W.2d 790

105 Wis.2d 171

Albert R. MUELLER and Delores J. Mueller, his wife Plaintiffs-Respondents-Petitioners, v. Donald B. BRUNN and Marion F. Brunn, his wife, Defendants Town of Vernon, a municipal corporation, Defendant-Appellant.

No. 80-1227.

Supreme Court of Wisconsin.

Argued Nov. 2, 1981.

Decided Jan. 5, 1982.

Leonard W. Schulz, Big Bend, for plaintiffs-respondents-petitioners.

Steven J. Steinhoff (argued), for defendant-appellant; Patrick F. Brown and Brown, Phillips & Davis, Waukesha, on brief.

HEFFERNAN, Justice.

The plaintiffs, Albert R. Mueller and Delores J. Mueller, his wife, hereinafter plaintiffs, have petitioned for review of a decision of the court of appeals ¹ which reversed an order of the trial court and directed that the plaintiffs' action against the Town of Vernon be dismissed. We reverse the court of appeals.

The plaintiffs, who are property owners in Waukesha county, commenced an action alleging that Donald B. Brunn and Marion F. Brunn, his wife, the vendors of the property purchased by plaintiffs, made material misrepresentations because they stated that they had no knowledge of any defects in respect to the adequacy and quality of the well, while, in fact, plaintiffs allege, the sellers had notice of salt contamination prior to the execution of the real estate contract.

In the same complaint, the plaintiffs also allege a cause of action against the Town of Vernon, the owner of property abutting the land purchased by the plaintiffs from the Brunns. The claim is that the Town of Vernon negligently stored road salt on the adjacent premises and that this caused the contamination of the plaintiffs' well.

The plaintiffs are residents of the Town of Vernon in Waukesha county. Originally the action was brought in Racine county in the belief that the defendants, Brunns, were residents of that county. Subsequently, upon being informed that the vendors were residents of Walworth county, the plaintiffs consented that the place of trial be changed to Walworth county. The Town of Vernon, which is located in Waukesha county, however, moved for the dismissal of the plaintiffs' complaint for lack of jurisdiction. Inconsistently, however, in its answer it asked for a change of venue to Waukesha county. After a hearing upon the motion, the trial court denied the motion to dismiss.

The Town of Vernon relied upon sec. 801.50(1)(a), Stats., ² which requires, subject to the provisions for change of venue, that the proper place of trial of civil actions for an injury to real property is in the county in which "the subject of the action or some part thereof is situated." Sec. 801.51 provides:

"The county designated in the complaint shall be the place of trial, unless the same be changed as provided in this chapter, except that every action named in s. 801.50(1) can be commenced only in the county in which the property or some part thereof is situated."

The trial court concluded that this statute, which arguably at least deprived the Walworth County Circuit Court of jurisdiction was inapplicable, because the action against the Town of Vernon was not in rem for relief in respect to the real estate, but rather was an action in personam for damages. It analogized the action to that in Fond du Lac Plaza, Inc., v. H. C. Prange Co., 47 Wis.2d 593, 178 N.W.2d 67 (1970). Accordingly, the trial court denied the Town of Vernon's motion for dismissal, concluding that a proper venue for trial was in Walworth county.

The court of appeals granted the Town of Vernon leave to appeal the nonfinal order determining venue. The court of appeals concluded that the trial court erred in failing to dismiss the complaint against the Town of Vernon, because the Walworth County Circuit Court lacked "subject matter jurisdiction." The court of appeals held that the action against the town, in accordance with sec. 801.50(1)(a), Stats., should have been brought in Waukesha county, the county where the property was located. The court of appeals reversed and remanded to the trial court with directions to dismiss the action against the Town of Vernon. It concluded that the reliance of the trial court on Fond du Lac Plaza, Inc., was misplaced. The court of appeals stated:

"In the present case, the Muellers' action is not one for specific performance. The language in the Fond du Lac Plaza case concerning the in personam versus in rem character of a specific performance action is inapplicable to an action for injury to property. Unlike an action for specific performance, an action for injury to property is in rem by nature and is an action which clearly subjects real estate to the jurisdiction of the court. Such an action must be commenced in the county in which the property is located....

"... The Walworth county circuit court has no subject matter jurisdiction to provide any relief to the Muellers on their claim ...." 101 Wis.2d at Pp. 235-36, 304 N.W.2d 144.

Because of the arguable inconsistency of the court of appeals' decision with the Fond du Lac Plaza case, we granted plaintiffs' petition for review.

Although on the basis of language of some of our past cases the statements of the court of appeals are understandable, it is now clear that whatever defect may have existed as the result of bringing the case in Walworth county it was not the defect of subject matter jurisdiction. As we stated in Matter of Guardianship of Eberhardy, 102 Wis.2d 539, 307 N.W.2d 881 (1981), subject matter jurisdiction is vested by the constitution in the courts of the State of Wisconsin. No circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever. We recognize, however, that the legislature has the authority to abolish heretofore recognized common law actions (e.g., breach of promise suits) and may set standards for exhaustion of administrative remedies or for primary jurisdiction prior to the proper invocation of the court system's subject matter jurisdiction.

The court of appeals, however, interpreted secs. 801.50 and 801.51, Stats., together and concluded that, because the first statute directs that the proper place of trial of civil actions for an injury to real property is the county in which the subject of the action is situated and because sec. 801.51 on its face appears to state that actions "named in s. 801.50(1) can be commenced only in the county in which the property or some part thereof is situated," the legislature has denied courts in Walworth county subject matter jurisdiction in respect to injuries to real property in Waukesha county. It is clear, however, from another provision of the same chapter, that this is not correct, because sec. 801.04(1) provides: ".... Nothing in chs. 801 to 847 affects the subject matter jurisdiction of any court of this state."

Thus, whatever disability Walworth County Circuit Court may have which arguably prevents it from proceeding to judgment in a case involving property in Waukesha county, it is not a disability properly denominated as lack of "subject matter jurisdiction." See Joseph P. Jansen Co., Inc. v. Milwaukee Area District Board of Vocational, Technical and Adult Education ---wiS.2d ---, 312 n.w.2D 813 (1981). the Fact, however, that the defect is not one of subject matter jurisdiction does not mean that, under the statute, it was appropriate to proceed to judgment in this case. The Restatement of Judgments, para. 7, p. 41, Comment a, provides:

"Comment :

"a. Requirement of competency of the court.... Although a State has jurisdiction over the person of the defendant, it may not have given to a particular court or it may not have given to any of its courts power to entertain the action. In such a case the court has no 'competency' to render a valid judgment. The court has no power to render a valid judgment, not because the State lacks power but because it has not conferred power upon the court."

Thus, it is apparent that, even where a court lacks only the competency, not jurisdiction, to deal with a particular type of problem, a judgment may be void. See Restatement of Judgments, para. 7, p. 41. Typical cases of a court's lack of competency are those set forth in Restatement of Judgments, para. 7, i.e., where there is a different level of trial courts and where certain types of action can be entertained only in specialized courts or where a judgment rendered by a justice of the peace is void under the law of the state because justices of the peace are not empowered to deal with the subject matter of the action. Also, there is lack of competency for excess sums where a court has the power to deal with an action but for no more than a designated amount. If a court has the power, i.e., subject matter jurisdiction, to entertain a particular type of action, its judgment is not void even though entertaining it was erroneous and contrary to the statute. Wisconsin Public Service Corp. v. Krist, 104 Wis.2d 381, 303 N.W.2d 854 (1981).

"Where a statute provides that an action shall be brought in a particular county and it is brought in a different county of the State, it depends upon the interpretation of the statute whether the judgment is void. Ordinarily such a statute is not construed as making the judgment void. The defect is one of venue, not of jurisdiction." Restatement of Judgments, para. 7, p. 43.

If a court truly lacks only competency, its judgment is invalid only if the invalidity of the judgment is raised on direct appeal.

"If, however, the court has jurisdiction over the parties and decides that it has competency to render the judgment, the parties may be precluded from collaterally attacking the judgment, on the ground that the question of the competency of the court is res judicata between them." Restatement of Judgments, para. 10, pp. 58-9.

In the instant case, of course, the question of the competency of the court to proceed was promptly raised by motion; and hence a judgment, if we were to find...