Pick Industries, Inc. v. Gebhard-Berghammer, Inc., GEBHARD-BERGHAMME

• Decision Date: 02 December 1952
• Docket Number: GEBHARD-BERGHAMME,I
• Citation: 262 Wis. 498,56 N.W.2d 97
• Parties: PICK INDUSTRIES, Inc. v.nc.
• Court: Wisconsin Supreme Court

Page 97

56 N.W.2d 97

262 Wis. 498

PICK INDUSTRIES, Inc. v. GEBHARD-BERGHAMMER, Inc.

Supreme Court of Wisconsin.

Dec. 2, 1952.

Rehearing Denied Feb. 3, 1953.

See 57 N.W.2d 519.

In 1947 Pick Industries, Inc., hereinafter referred to as Pick, engaged Gebhard-Berghammer, Inc., hereinafter referred to as Gebhard, to build a factory for Pick's use. The total cost of construction was about $110,000, upon which there is an unpaid balance of approximately $11,000. After the factory was built and Pick had begun manufacturing operations in it, cracks appeared in a wall and the cement floor began to go to pieces. Thereupon Pick brought an action against Gebhard in the circuit court for Washington county for damages due to defective workmanship and material. Gebhard answered and counterclaimed. After issue was joined the parties considered that their difficulty could best be settled by arbitration and, with the knowledge and approval of the trial court, a written submission was executed by both parties. The agreement specified that each party should select an arbitrator and they should select a third. Mr. Kuelthau, an attorney, was selected by Pick, and Mr. Boynton, an engineer, by Gebhard. They could not agree upon a third and the circuit judge appointed Mr. Tennies, a mason contractor. Mr. Tennies acted as chairman. The submission directed that the arbitrators act by agreement of a majority of them. Such other provisions of the agreement as are material to the decision will be stated in the opinion.

On February 21, 1950 an award was agreed upon by Mr. Kuelthau and Mr. Tennies, with Mr. Boynton dissenting. On March 2, 1951 the award, with the other records of the arbitrators, was filed with the circuit court. On March 31st Gebhard moved the court to vacate the award and to set aside the arbitration agreement and proceed with the damage suit. On August 1, 1951 the court denied the motion to set aside the agreement and before deciding the motion to vacate the award the trial court conducted a hearing to determine whether the arbitrators were guilty of any fraud or misconduct on account of which their award should be vacated. After such hearing, on November 29, 1951, the trial court entered an order denying Gebhard's motions of March 31, 1951. On March 1, 1952 Gebhard appealed from the orders of August 1 and November 29, 1951.

Other material facts will be stated in the opinion.

Houghton, Neelen & Bullinger, Milwaukee, Schloemer & Stoltz, West Bend, William Smith Malloy, Milwaukee, for appellant.

O'Meara & O'Meara, West Bend, for respondent.

BROWN, Justice.

On August 1, 1951 the trial court denied a motion of Gebhard to set aside the arbitration agreement. Gebhard did not appeal from this until March 1, 1952, which Pick submits is too late, by reason of the requirements of sec. 274.01(1), Stats., being more than six months after the entry of the order. If the order was appealable Pick's contention must be sustained. Gebhard contends, however, that it was not an appealable order as such orders are described in sec. 274.33, Stats., but was an intermediate order which may be reviewed when brought here in connection with an appeal from an order which is appealable, meaning the order of November 29, 1951 which denied Gebhard's motion to vacate the award. Conceding, for the purpose of the argument, that the latter order is an appealable one, we cannot follow the argument to the conclusion which Gebhard has reached. Sec. 274.34, Stats., confers power upon the supreme court to review an intermediate order which involves the merits and necessarily affects the judgment but it grants this power only on appeal from judgments and upon writs of error, neither of which, as yet, appear in this case. A long series of decisions in this court have held that on an appeal from an order the supreme court lacks power to review a priororder in the cause. Breed v. Ketchum, 1881, 51 Wis. 164, 166, 7 N.W. 550; Procknow v. Northwestern Iron Co., 1914, 156 Wis. 408, at page 409, 145 N.W. 1098, 1104, and cases cited.

If the order of August 1, 1951 was an appealable one, the time when appeal might be taken had expired when the appeal was perfected on March 1, 1952. If it was a nonappealable, intermediate order it is not carried up for review by an appeal from a later order. Upon either theory we have no jurisdiction over it now.

Gebhard submits a third alternative to give us jurisdiction: On March 31, 1951, Gebhard moved to set aside the arbitration agreement and to vacate the award. The court's order of August 1, 1951, denied only the first of these motions. On November 29, 1951, after the trial court had completed its hearings to determine whether the award should be vacated and had concluded that it should not, it entered its order of denial in these words: 'It Is Ordered: That the defendant's motions of March 31, 1951, be denied.' Gebhard now contends that the motion to set aside the arbitration agreement was included in this order and was thus denied on November 29, 1951, although the order of August 1, 1951 had already expressly denied it, wherefore the appeal taken March 1, 1952, within six months of November 29, 1951, is timely on the agreement-to-arbitrate issue as well as on the issue of vacating the award. The contention cannot be sustained. The order of August 1, 1951 disposed of the motion to set aside the arbitration agreement unless there was an appeal within six months (assuming the order to be an appealable one, which is indispensable to any theory that it can be appealed now), and such motion is not recreated for the purpose of a second denial by a later order which repeats the earlier one. Insofar as the language of the November 29, 1951 order includes the motion...