Prey v. Allard

• Citation: 239 Wis. 151,300 N.W. 13
• Parties: PREY et al. v. ALLARD et al.
• Decision Date: 02 December 1941
• Court: United States State Supreme Court of Wisconsin

239 Wis. 151

300 N.W. 13

PREY et al.

v.ALLARD et al.

Supreme Court of Wisconsin.

Oct. 7, 1941.

Rehearing Denied Dec. 2, 1941.

Appeal from a judgment of the Circuit Court for Lincoln county; George J. Leicht, Circuit Judge.

Affirmed.

This action was begun in August, 1939, by Charles Prey and Walter Prey, plaintiffs and appellants, against Eugene Allard, Christina Allard, Herman Leverance and Harry D. Myers, defendants and respondents, in which the plaintiffs sought the following relief: (1st) a declaration that the judgment pronounced by the defendant, Harry D. Myers, a justice of the peace, was void and of no force or effect; (2d) an order restraining the defendants from doing certain things; and (3d) for damages in the total sum of $4,237. The defendants answered and upon affidavits moved for summary judgment. The motion was granted and judgment was entered in favor of the defendants on June 29, 1940. From the summary judgment the plaintiffs appeal.E. C. Smith, of Tomahawk, for appellant.

Frank E. Hebert, of Tomahawk, for respondent.

ROSENBERRY, Chief Justice.

[1] Neither counsel cited the case of Unmack v. McGovern, 1941, 236 Wis. 639, 296 N.W. 66 in which it was distinctly held that the motion for summary judgment did not lie except in one of the classes of actions enumerated in section 270.635 (1), Wisconsin Stats. It is clear as counsel concede that this action does not fall within the statutory classification. Counsel for the defendants, however, sought to sustain the judgment under subsection (2), which provides:

“The judgment may be entered in favor of either party, on motion, upon the affidavit of any person who has knowledge thereof, setting forth such evidentiary facts, including documents or copies thereof, as shall, if the motion is by the plaintiff, establish his cause of action [etc.]”

Counsel read into subsection (2) the general provision of subsection (1), “Summary judgment may be entered as provided in this section in an action” and contends that subsection (2) applies to any action. It is clear, however, that motions for summary judgments are limited to the classes of actions enumerated in subsection (1) and subsection (2) does not enlarge that classification.

Section 270.635(1) was amended by rule to provide:

[2][3] “Summary judgment may be entered as provided in this section in any civil action or special proceeding” striking out the classifications theretofore set out in the statute. However, this amendment did not become effective until July 1, 1941, more than a year after the judgment in this case was entered. While there is no vested right in procedure, neither can a procedural change operate to confer jurisdiction as of the time of the commencement of an action where the cause of action has ripened into a judgment. While it is true that as a general rule, statutes that are remedial only are retroactive, Pawlowski v. Eskofski, 1932, 209 Wis. 189, 244 N.W. 611, they will be so construed only where they do not impair contracts or disturb vested rights. Levy v. Birnschein, 1932, 206 Wis. 486, 240 N.W. 140.

In this case a judgment was rendered in favor of the defendants and against the plaintiff. The controversy was submitted to the court by stipulation of the parties as appears from the following extract from the record: “The parties having stipulated in open court that motion for summary judgment, on behalf of the defendants, be submitted to the court on briefs. The defendants above named upon all the papers now on file in said action and upon the affidavits etc. will move for summary judgment in favor of the defendants.”

The record presents some novel questions. The circuit court undoubtedly had jurisdiction of the cause of action set out in the plaintiffs' complaint. At the time the judgment was rendered the court was not authorized by statute to proceed by way of a summary judgment and there can be no doubt that its procedure was in that...