Schroedel Corp. v. State Highway Commission

• Decision Date: 09 April 1968
• Parties: SCHROEDEL CORPORATION, a Wis. corporation, Appellant, v. STATE HIGHWAY COMMISSION of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 562

157 N.W.2d 562

38 Wis.2d 424

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

Supreme Court of Wisconsin.

April 9, 1968.

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

Robert P. Russell, Corp. Counsel; Robert G. Polasek, Asst. Corp. Counsel, Milwaukee, for respondent.

CONNOR T. HANSEN, Justice.

This appeal presents two issues:

1. Whether the notice of appeal by certified mail under sec. 32.05(10), Stats., must be received within the statutory 60 day appeal period.

2. Whether the trial court erred in determining that the notices of appeal by the state highway commission were, in fact, timely served.

It is undisputed that the 60 day statutory appeal period expired at midnight, August 30, 1966.

1. Appellant contends that the notice of appeal must be received on or before the sixtieth day, whereas respondent contends that service of the notice of appeal is completed upon the mailing within the 60 day appeal period. It is admitted that the notices of appeal were not received by appellant until after the expiration of the 60 day appeal period.

Sec. 32.05(10)(a), Stats., provides in part as follows:

'(10) APPEAL FROM COMMISSION'S AWARD TO CIRCUIT COURT. (a) Within 60 days after the date of filing of the commission's award, any party to the proceeding before the commission may appeal to the circuit court of the county wherein the property is located. Notice of such appeal shall be given to the clerk of the circuit court and to all persons other than the appellant who were parties to the proceeding before the commissioners. Notice of appeal may be given by certified mail or by personal service. The clerk shall thereupon enter the appeal as an action pending in said court with the condemnee as plaintiff and the condemnor as defendant. It shall thereupon proceed as an action in said court subject to all the provisions of law relating to actions brought therein and shall have precedence over all actions not then on trial. * * *'

Boeck v. State Highway Comm. (1967), 36 Wis.2d 440, 153 N.W.2d 610, considered the sufficiency of service of the jurisdictional offer by use of certified mail under sec. 32.05(4), Stats.

The subsection construed in Boeck, sec. 32.05(4), Stats., was specific in that it provided, 'If service is by mail, service of the papers shall be deemed completed on the date of mailing and the use of mail service shall not increase the time allowed to act in answer to or in consequence of such service.' Under the language of this statute it was held that service was complete on the date of mailing.

Unfortunately, the language of sec. 32.05(10), Stats., is not as specific as that of the subsection construed in Boeck since it only provides that 'Notice of appeal may be given by certified mail or by personal service.'

However, in Boeck, supra, pp. 445--446, 153 N.W.2d p. 612, Mr. Justice Beilfuss includes a summary of the established cases:

"In 42 Am.Jur., 48, it is said:

"'Service of Process by Mail, when authorized, is deemed complete when the writ is deposited in the post office, properly addressed and with the proper amount of postage. And it is sufficient if it is deposited in the mail on the last day allowed for service, although it is not received by the other party until after that day.'

"See, Carlson v. Stuart, 18 Ann.Cas. 285 (22 S.D., 560, 119 N.W., 41), in a foot-note to which (, as reported in 18 Ann.Cas., 285, at page 286,) we find this statement:

"'Service by mail, properly made in compliance with statute, is complete from the time the notice or other paper to be served is deposited in the post office with the proper amount of postage, and the risk of failure of the mail is upon the party to whom the paper is addressed.'

"The syllabus of Hurley v. Olcott, 198 N.Y. 132, 91 N.E. 270, (as reported in) 28 L.R.A., N.S., 238 is:

"'Failure of the employer to receive the notice is immaterial where a statute providing for service of notice of injury for which the master is to be held liable states that it may be served by post, by letter addressed to the person on whom it is to be served.'

"And, at page 134 of 198 N.Y., at page 270 of 91 N.E., 28 L.R.A.,N.S., 239, the Court says:

"'In many cases the statute provides that notice may be served by mail. Such is the provision as to service of papers on the attorneys in an action, and it has been uniformly held that the service was effective when the papers were properly mailed, regardless of their receipt by the adverse party. The risk of miscarriage is with the party to whom they are directed. Jacobs v. Hooker, 1 Barb. 71; Brown v. Briggs, 1 How.Prac. 152; Radcliff v. Van Benthuysen, 3 How.Prac. 67."'

Where service by mail is authorized, and in the absence of specific language to the contrary, such service of notice is completed upon the timely mailing even though not specifically stated. However, the party electing to use such mode of service must necessarily bear the burden of proving that the service was timely accomplished.

This is consistent with the notice provisions of sec. 32.05(4), Stats., relating to the jurisdictional offer and also the provisions of sec. 269.34, Stats., entitled Service of papers; personal any by mail. The appellant urges that somehow a distinction should be drawn between 'judicial' actions or proceedings and 'administrative' proceedings. Such a distinction is inappropriate when the issue relates to timeliness of service by mail when permitted by statute.

The appellant further contends that the application of the well-established rule that condemnation statutes are to be strictly construed against the condemnor and in favor of the condemnee supports its position. See Schroedel Corp. v. State Highway Comm. (1967), supra. 34 Wis.2d at page 45, 148 N.W.2d 691. The statutes under consideration provide that either party may appeal the award of the condemnation commission. The application of this rule to the procedural question now under consideration would establish a double standard with respect to the requirements for appeal to the circuit court. Neither the language of the statute nor the intent thereof can be construed to produce such a result.

We conclude that the trial court correctly decided that the mailing of the notices completed the service thereof.

2. The second issue presents a more difficult question. Did the respondent commission mail the notice of appeal on or before midnight, August 30, 1966? The trial court found that the respondent had done so.

Findings of fact, by a trial court will not be set aside unless they are contrary to the great weight and clear preponderance of the evidence. State ex rel. Kapusta v. Weir (1960), 12 Wis.2d 96, 99, 106 N.W.2d 292; State ex rel. Sowle v. Brittich (1959), 7 Wis.2d 353, 96 N.W.2d 337.

Many of the essential facts are not in dispute. Three notices of appeal were mailed in separate envelopes. One was addressed to Whyte, Hirschboeck, Minahan, Harding & Harland, 2100 Marine Plaza, Milwaukee, attorneys for Schroedel Corporation. The second was addressed to Roger C. Minahan, 2100 Marine Plaza, Milwaukee, as the then secretary of Schroedel Corporation. The third was addressed to Schroedel Corporation, Mukwonago,...