Schroedel Corp. v. State Highway Commission

• Decision Date: 28 February 1967
• Citation: 148 N.W.2d 691,34 Wis.2d 32
• Parties: SCHROEDEL CORPORATION, a Wis. corporation, Respondent, v. STATE HIGHWAY COMMISSION of Wisconsin, Appellant.
• Court: Wisconsin Supreme Court

Page 691

148 N.W.2d 691

34 Wis.2d 32

SCHROEDEL CORPORATION, a Wis. corporation, Respondent, v. STATE HIGHWAY COMMISSION of Wisconsin, Appellant.

Supreme Court of Wisconsin.

Feb. 28, 1967.

Bronson C. La Follette, Atty. Gen., Richard E. Barrett, Asst. Atty. Gen., Madison, Robert P. Russell, Corp. Counsel, Hugh R. Braun, Asst. Corp. Counsel, for Milwaukee Co., Milwaukee, for appellant.

Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, Roger C. Minahan, Richard P. Buellesbach, Richard C. Ninneman, Milwaukee, of counsel, for respondent.

CURRIE, Chief Justice.

The single issue presented by this appeal is:

Was the assignment of the condemnation appeal to the county condemnation commission made by Circuit Judge ROLLER as a judge or as a court?

Jurisdiction to enter an order assigning an appeal to a condemnation commission pursuant to sec. 32.05(9), Stats., lies with a circuit or county judge of the county wherein the subject property is located. A court lacks such jurisdiction. ² Sec. 32.05(9) in part provides:

'(9) Appeal from award by owner or other party in interest. (a) Any party having an interest in the property condemned may, within 2 years after the date of taking, appeal from the award, except as hereinafter limited by applying to the judge of the circuit or county court of the county wherein the property is located for assignment to a commission of county condemnation commissioners as provided in s. 32.08. Such application shall contain a description of the property condemned and the names and last known addresses of all parties in interest but shall not disclose the amount of the jurisdictional offer nor the amount of the basic award. Violation of this prohibition shall nullify such application. Notice of such application shall be given to the clerk of the court and to all other persons other than the applicant who were parties to the award. Such notice may be given by certified mail or personal service. Upon proof of such service the judge shall forthwith make such assignment. * * *' (Emphasis added.)

Appellant contends, predicating its contention exclusively on the pleadings of the Schroedel Corporation, that the application for assignment was directed to the circuit court, not to a judge and, therefore, was fatally defective. Judge WATTS received the application and concluded that despite the irregularities, the assignment to the condemnation commission was made by the circuit judge, and was not an action or proceeding pending in court. In his Memorandum of Bench Decision and Order, Judge WATTS recited:

'IT IS THE FINDING OF THE COURT:

'* * *

'4. That the papers in the case at bar are irregular, but taken in their full context are interpreted to ask for relief under Section 32.05(9) of the Wisconsin Statutes and the Order of Assignment to the Condemnation Commission was by the 'Circuit Judge' and not by the Court, all of which are deemed by this Court to be sufficient to comply with the statutes as an administrative function.'

Before considering the papers filed by the Schroedel Corporation, it should be noted that the instant appeal is primarily attributable to the procedure followed in Milwaukee county respecting appeals to the condemnation commission (sec. 32.05(9)). Judge WATTS in his Oral Bench Decision, and counsel for the Schroedel Corporation in their briefs, have set forth the Milwaukee county procedure. To secure the signature of a judge on an order assigning an appeal to the condemnation commission the required papers must be filed with the clerk of circuit court, who, after $13 is deposited, assigns a file number and designates the judge to whom the papers are to be taken. Without such a designation, counsel for the Schroedel Corporation states, a circuit judge will not enter an order assigning the matter to the condemnation commission.

There is reason to question the propriety of the foregoing procedure. The assignment by a judge to a condemnation commission is but an ex parte administrative proceeding and not an action. In Acheson v. Winnebago County Highway Comm. ³ this court, speaking of such an assignment, stated:

'* * * This function of the judge is administrative, not judicial. Until the commissioners have made an award a proceeding under ch. 32, is not of a judicial nature, the judge merely acting in an administrative capacity.' ⁴ We also stated in City of Madison v. Tiedeman: ⁵

"* * * it is only after such an appeal has been taken from the commissioners' award to the circuit court, * * * that there can be held to be pending any action or proceeding in any court." ⁶

Additionally, in Klump v. Cybulski ⁷ it is stated:

'* * * Until the commissioners have made an award, it is not a judicial proceeding, and the judge acts in an administrative capacity. * * * Hence rules applicable to judicial proceedings in a court are not controlling.'

Judge WATTS, taking specific note of Milwaukee procedure, before considering the papers filed by the Schroedel Corporation, concluded in his Memorandum of Bench Decision and Order:

'1. That the appeal procedure under Section 32.05(9) of the Wisconsin Statutes from the award to the Condemnation Commission is an administrative function performed by the judge and is not a Court action.

'* * *

'3. That the Clerk of Court is not entitled to a $13.00 filing fee on this type of administrative function because it is not a Court action.'

It has been suggested that where an order assigning an appeal to the condemnation commission is sought, the application be taken directly to a judge. The action taken by the judge, in assigning such an appeal, is not entirely dissimilar from that taken where parties to be married request a dispensation of the required five-day period between application for and the issuance of marriage license. (Sec. 245.08, Stats.)

There is, however, some indication from that part of sec. 32.05(9), Stats., relating to appeals by other parties in interest that an appeal must be filed, presumably with the clerk of the circuit or county court. Sec. 32.05(9) in relevant part provides:

'* * * In cases involving more than one party in interest with a right to appeal, the first of such parties filing an appeal under this subsection or under sub. (11) shall determine whether such appeal shall be under this subsection or under sub. (11). No party in interest may file an appeal under this subsection if another party in interest in the same lands has filed a prior appeal complying with the requirements of sub. (11). Thereafter the procedure shall be as prescribed in s. 32.08. * * * (Emphasis added.)

Reference to sec. 32.05(11), Stats., Waiver of Hearing Before Commission; Appeal to Circuit Court and Jury, is also an indication that the appeal is to be filed.

Lastly, sec. 32.08(6)(b), Stats., provides that the commission shall make a written award 'and file such award with the clerk of the circuit court, who shall * * * record the original in the judgment book of such court.'

Keeping in mind these statutory provisions, we deem it pertinent for us at this point to consider, seriatim, all of the relevant documents filed by the Schroedel Corporation.

On August 10, 1965, the Schroedel Corporation filed with the clerk of circuit court for Milwaukee county, Civil Division, an appeal to the condemnation commission of Milwaukee county and a $13 filing fee was paid. The venue line reads: 'STATE OF WISCONSIN: CIRCUIT COURT CIVIL DIVISION: MILWAUKEE COUNTY.' The document is entitled on appeal. The first line in the body recites: 'TO THE CIRCUIT COURT FOR THE COUNTY OF MILWAUKEE:' The condemnor is referred to as 'Defendant' and the Schroedel Corporation, the condemnee, is referred to as 'Plaintiff.' The wherefore clause states: 'WHEREFORE, Petitioner prays that the Judge of the Circuit Court to whom this action is assigned, enter an Order assigning this appeal from the above described Award of Damages to the Condemnation Commission for Milwaukee County, pursuant to Section 32.05(9) of the Wisconsin Statutes.' (Emphasis added.)

Appellant contends that the above-described document set venue in the circuit court and thereby evidenced the intent of the Schroedel Corporation to petition the circuit court.

As previously noted, Milwaukee county procedure requires the papers necessary for an assignment to the condemnation commission to be filed with the clerk of circuit court.

Rule 3.01(1) Rules of County Board of Judges of Milwaukee County states:

'The venue of the action or proceeding shall be stated in the caption of the summons, pleading, or papers to be served or filed, substantially as follows:

"State of Wisconsin--_ _

Court--Milwaukee County

_ _--Division"

No exception is provided for condemnation appeals taken pursuant to sec. 32.05(9), Stats.

As to the caption of the document, the following principle stated at 71 C.J.S. Pleading § 65, page 161, is apropos.

'* * * While a caption or title may be considered a proper formal part of a declaration, complaint, or petition, it has been said that, strictly speaking, a caption is no part thereof, except where, by express reference thereto in the pleading itself, it is made a part thereof, and that the caption of a complaint constitutes no part of the statement of the cause of action; and accordingly it has generally been held that a defective caption, or the absence of a caption, is merely a formal defect and not fatal, and may be waived by answering to the merits.'

Appellant asserts that it was improper to designate the condemnor as 'Defendant' and the condemnee as 'Plaintiff.' Sec. 32.05, Stats., provides three procedural avenues for appeal from a condemnation award. Under sec. 32.05(9), Stats., an appeal from the basic award may be taken by applying to a circuit or county judge for assignment of the matter to the county condemnation commission as provided in sec. 32.08, Stats. Sec. 32.05(9) does not specify how the parties are to be designated except that the term 'appellant' is...