Refusal to Submit to Chemical Test, Matter of, No. 54

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtCONNOR T. HANSEN
Citation234 N.W.2d 345,70 Wis.2d 220
Docket NumberNo. 54
Decision Date28 October 1975
PartiesIn the Matter of REFUSAL TO SUBMIT TO CHEMICAL TEST. STATE of Wisconsin, Respondent, v. Alfred POWELL, Appellant. (1974).

Page 345

234 N.W.2d 345
70 Wis.2d 220
In the Matter of REFUSAL TO SUBMIT TO CHEMICAL TEST.
STATE of Wisconsin, Respondent,
v.
Alfred POWELL, Appellant.
No. 54 (1974).
Supreme Court of Wisconsin.
Oct. 28, 1975.

Alfred Powell, defendant-appellant, was arrested on November 16, 1973, for operating a motor vehicle while under the influence of an intoxicant, in violation of sec. 346.63(1)(a), Stats. He refused to submit to a chemical test for intoxication as provided in sec. 343.305. The trial judge found Powell's refusal to submit to the test to be unreasonable. The trial court also ordered that Powell's operating privileges be suspended for sixty days pursuant to sec. 343.305(7)(c). The suspension was stayed pending this appeal.

Thomas W. St. John and Robert H. Friebert, Milwaukee (Samson, [70 Wis.2d 221] Friebert, Sutton, Finerty & Burns, Milwaukee, of counsel), for appellant.

Robert W. Warren, Atty. Gen., Albert Harriman, Asst. Atty. Gen., Madison, for respondent.

CONNOR T. HANSEN, Justice.

On this appeal, Powell presents several issues which go to the merits of the trial court's finding that Powell's refusal to submit to the chemical test was unreasonable and to the order suspending the operating privileges for sixty days.

However, before this court can consider the merits of a controversy, it must first be established that we have appellate court jurisdiction.

Page 346

Neither party raised the issue of appealability in their briefs; nevertheless, it was raised at oral argument and the defendant subsequently responded in writing. Furthermore, parties cannot, either by failure to raise the question or by consent, confer jurisdiction upon an appellate court to review an order which is not appealable. Mitler v. Associated Contractors (1958), 3 Wis.2d 331, 333, 88 N.W.2d 672; In re Interest of F.R.W. (a minor) (1973), 61 Wis.2d 193, 212 N.W.2d 130, certiorari denied 416 U.S. 974, 94 S.Ct. 2000, 40 L.Ed.2d 563. In Mitler, supra, this court quoted from Jaster v. Miller (1955), 269 Wis. 223, 234, 69 N.W.2d 265, 271, as follows:

'Neither the waiver or consent of a respondent, nor the willingness of this court to consider a matter in the interests of justice, gives us authority to take jurisdiction where none is conferred by law.'

In the instant case the purported order which is the basis of this appeal was pronounced by the trial court from the bench. It, of course, appears in the transcript of the proceedings in court. The record also contains a one page printed form, denominated 'Minutes,' and [70 Wis.2d 222] captioned 'HEARING ON REFUSAL.' Some of the blank spaces on the form, including those provided for the name of the judge and...

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10 practice notes
  • Coleman v. Percy, No. 77-615
    • United States
    • United States State Supreme Court of Wisconsin
    • 3 Junio 1980
    ...jurisdiction to review an order which is not otherwise reviewable. See, e. g., In re Refusal to Submit to Chemical Test: State v. Powell, 70 Wis.2d 220, 234 N.W.2d 345 (1975); Heritage Mut. Ins. Co. v. Thoma, 45 Wis.2d 580, 173 N.W.2d 717 (1970). It follows, therefore, that the Department a......
  • Orlando Residence, Ltd. v. Nelson , No. 2012AP1528.
    • United States
    • Court of Appeals of Wisconsin
    • 22 Mayo 2013
    ...The transcript of the hearing does not satisfy the requirement that a written judgment or order be entered. See State v. Powell, 70 Wis.2d 220, 222, 234 N.W.2d 345 (1975). We cannot hear the Nelsons' appeal of the issues raised at the hearing.November 5, 2010 Order ¶ 16 The circuit court is......
  • Popp's Estate, Matter of, No. 75-811
    • United States
    • United States State Supreme Court of Wisconsin
    • 5 Abril 1978
    ...be effective, insofar as it concerns the parties and the trial court, even though it has not been reduced to writing. State v. Powell, 70 Wis.2d 220, 222, 234 N.W.2d 345 (1975); State ex rel. Hildebrand v. Kegu, 59 Wis.2d 215, 216, 207 N.W.2d 658 (1973). The judicial act is complete when th......
  • State v. Peterson, Appeal No. 2017AP1871
    • United States
    • Court of Appeals of Wisconsin
    • 10 Septiembre 2019
    ...1979). The transcript of the hearing does not satisfy the requirement that a written judgment or order be entered. See State v. Powell , 70 Wis. 2d 220, 222, 234 N.W.2d 345 (1975).¶8 The circuit court orally denied Peterson’s WIS. STAT. § 974.06 motion at a June 23, 2017 hearing. Peterson s......
  • Request a trial to view additional results
10 cases
  • Coleman v. Percy, No. 77-615
    • United States
    • United States State Supreme Court of Wisconsin
    • 3 Junio 1980
    ...jurisdiction to review an order which is not otherwise reviewable. See, e. g., In re Refusal to Submit to Chemical Test: State v. Powell, 70 Wis.2d 220, 234 N.W.2d 345 (1975); Heritage Mut. Ins. Co. v. Thoma, 45 Wis.2d 580, 173 N.W.2d 717 (1970). It follows, therefore, that the Department a......
  • Orlando Residence, Ltd. v. Nelson , No. 2012AP1528.
    • United States
    • Court of Appeals of Wisconsin
    • 22 Mayo 2013
    ...The transcript of the hearing does not satisfy the requirement that a written judgment or order be entered. See State v. Powell, 70 Wis.2d 220, 222, 234 N.W.2d 345 (1975). We cannot hear the Nelsons' appeal of the issues raised at the hearing.November 5, 2010 Order ¶ 16 The circuit court is......
  • Popp's Estate, Matter of, No. 75-811
    • United States
    • United States State Supreme Court of Wisconsin
    • 5 Abril 1978
    ...be effective, insofar as it concerns the parties and the trial court, even though it has not been reduced to writing. State v. Powell, 70 Wis.2d 220, 222, 234 N.W.2d 345 (1975); State ex rel. Hildebrand v. Kegu, 59 Wis.2d 215, 216, 207 N.W.2d 658 (1973). The judicial act is complete when th......
  • State v. Peterson, Appeal No. 2017AP1871
    • United States
    • Court of Appeals of Wisconsin
    • 10 Septiembre 2019
    ...1979). The transcript of the hearing does not satisfy the requirement that a written judgment or order be entered. See State v. Powell , 70 Wis. 2d 220, 222, 234 N.W.2d 345 (1975).¶8 The circuit court orally denied Peterson’s WIS. STAT. § 974.06 motion at a June 23, 2017 hearing. Peterson s......
  • Request a trial to view additional results

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