Olson v. Milwaukee Auto. Ins. Co.
| Decision Date | 06 April 1954 |
| Citation | 266 Wis. 106,63 N.W.2d 740 |
| Parties | OLSON, v. MILWAUKEE AUTO. INS. CO. et al. (two cases). SCHALLER, v. MILWAUKEE AUTO. INS. CO. et al. |
| Court | Wisconsin Supreme Court |
Hale, Skemp, Nietsch, Hanson & Schnurrer, La Crosse, for Welch and ins. co.
Lees & Bunge, La Crosse, Lawrence M. Engelhard, La Crosse, of counsel, for Trucking Co. and Voshell.
Donovan, Gleiss, Goodman, Breitenfield & Gleiss, Sparta, for respondent.
Counsel for defendant, Welch, and his insurance carrier, have moved for a rehearing. Their contentions were fully considered and passed upon in our original determination. The motion must be denied with $25 costs.
Counsel for defendant, Voshell, have also moved for rehearing and submit an issue which was not called to our attention originally. They contend that the mandate should be modified so as to direct a re-trial of but one issue--that of the alleged negligence of Voshell; that it has been finally determined that Welch was guilty of causal negligence and that therefore they should not be required to re-establish it upon a second trial.
They are correct. Judgment was entered on May 22, 1953 dismissing Welch's cross-complaint against Voshell. There has been no appeal from that judgment. It is a final determination of the issue made by Welch's demand for property damage. It appears clearly from our original opinion that the finding of causal negligence on the part of Welch is supported by ample evidence and that therefore it should not be necessary to re-try that issue.
Counsel for Welch seek to avoid the effect of their failure to appeal from the judgment herein referred to upon the ground that they were not served with notice of its entry. The right to appeal and to do it timely is not affected by the fact that notice of entry of a judgment or order is or is not served. Sec. 274.01(1), Stats.
The mandate is modified so as to read: The judgments for the plaintiffs, Melvin E. Olson, as administrator of the estate of Russell Olson, deceased, and Eugene Schaller, against the defendants Milwaukee Automobile Insurance Company, a Wisconsin corporation, and Blaine Welch are affirmed. The cause is remanded for a new trial only upon the issues as to the causal negligence of defendant Voshell.
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