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

• Decision Date: 03 July 1953
• Docket Number: GEBHARD-BERGHAMME,I
• Citation: 59 N.W.2d 798,264 Wis. 353
• Parties: PICK INDUSTRIES, Inc. v.nc.
• Court: Wisconsin Supreme Court

Page 798

59 N.W.2d 798

264 Wis. 353

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

Supreme Court of Wisconsin.

July 3, 1953.

Rehearing Denied Sept. 11, 1953.

See 60 N.W.2d 254.

Appeal by the respondent, Pick Industries, Inc., from a declaratory judgment dated September 2, 1952, declaring and adjudicating that the arbitration proceedings involved in the action were at common-law and not pursuant to Ch. 298, Stats., thereby excusing respondent from moving for a confirmation within the one year period provided by sec. 298.09, Stats. The essential facts will be stated in the opinion.

Houghton, Neelen & Bullinger, Milwaukee, Schloemer, Stoltz & Merriam, West Bend, for appellant.

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

FRITZ, Chief Justice.

The instant action for declaratory judgment was an outgrowth of the litigation before us in Pick Industries, Inc., v. Gebhard-Berghammer, Inc., 1952, 262 Wis. 498, 56 N.W.2d 97, 57 N.W.2d 519.

We have an unusual situation here of having this court in its original decision on the former appeal dated December 2, 1952, and in its subsequent memorandum decision on the motion for rehearing dated March 6, 1953, holding that the arbitration proceedings were statutory and not at common-law, while the trial court in the instant proceedings for declaratory judgment had, some three months before our original decision, determined the same to be at common-law in the declaratory judgment action not before us on the first appeal. However, we feel this is a proper situation for application of the rule of the 'law of the case'. This court, having already determined on the prior appeal that the arbitration proceedings were statutory, Pick Industries, Inc. is thereby precluded on this appeal from again raising the same question. Langer v. Stegerwald Lumber Co., 1952, 262 Wis. 383, 385, 55 N.W.2d 389, 56 N.W.2d 512; Foster v. Rowe, 1907, 132 Wis. 268, 270, 111 N.W. 688; Cape v. Plymouth Congregational Church, 1906, 130 Wis. 174, 179, 109 N.W. 928; McCord v. Hill, 1903, 117 Wis. 306, 308, 94 N.W. 65.

While this holding, that the arbitration proceedings were statutory and not at common-law, would technically dispose of the issue on this appeal, both parties have requested that this court construe sec. 298.09, Stats., with respect to the position in which the parties are now left as the result of our holding that the arbitration proceedings were statutory in nature. Sec. 298.09, Stats., provides as follows:

'At any time within one year after the award is made any party to the arbitration may apply to the court in and for the county within which such award was made for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified or corrected as prescribed in the next two sections. Notice in writing of the application shall be served upon the adverse party or his attorney 5 days before the hearing thereof.'

The award of the arbitrators, although dated February 21, 1951 was not filed with the clerk of the circuit court until March 2, 1951. It is our interpretation of the statute that such date of the filing of the award started the running of the period of one-year in which either party might move for confirmation of the award. On March 1, 1952, Gebhard-Berghammer, Inc. perfected its appeal to this court from the two orders of the circuit court dated August 1, and November 29, 1951, referred to in our opinion on the prior appeal.

This raises the question of whether March 1, 1952, or March 2, 1952, was the last date available to either party to move for confirmation of the award. This is dependent upon whether in computing the year period the last day of the year is included or excluded. Sec. 370.01(24) Stats.1949, provided that, in construing statutes where time is expressed in days, the first day was excluded and the last day included; but Ch. 370, prior to the action of the 1951 legislature, contained no provision for computing time where the statute...