State ex rel. Freeman Printing Co. v. Luebke

• Decision Date: 03 October 1967
• Citation: 152 N.W.2d 861,36 Wis.2d 298
• Parties: STATE ex rel. FREEMAN PRINTING COMPANY, a Wisconsin corporation, Henry A. Youmans, Jr., and Gilbert H. Koenig, Relators, v. Arthur L. LUEBKE, Acting Judge of the Circuit Court for Waukesha County, Respondent.
• Court: Wisconsin Supreme Court

Page 861

152 N.W.2d 861

36 Wis.2d 298

STATE ex rel. FREEMAN PRINTING COMPANY, a Wisconsin

corporation, Henry A. Youmans, Jr., and Gilbert H.

Koenig, Relators, v. Arthur L. LUEBKE, Acting Judge of the Circuit Court for

Waukesha County, Respondent.

Supreme Court of Wisconsin.

Oct. 3, 1967.

James D'Amato commenced the suit in Waukesha county for libel against the Freeman Printing Company, Youmans, Koenig and two other persons descriptively designated as Freeman Reader, alias, and Disgusted Taxpayer, alias. A demurrer interposed to the complaint was sustained. D'Amato amended his complaint, the defendants again demurred and this time the demurrer was overruled. The oral decision overruling the demurrer was made on January 20, 1967, and allowed the defendants twenty days from the service of the written order to answer or plead. On March 9th and prior to the signing of the order, D'Amato filed an affidavit and motion for a voluntary nonsuit and a hearing was set thereon for March 27th. However, on March 17th the order overruling the demurrer was signed by the court and on March 22nd the defendants perfected an appeal to this court from that order. Thereafter and while the appeal was pending in this court, the circuit court heard D'Amato's motion and granted him a voluntary nonsuit. Certiorari was then sought in this court and the writ was issued.

Lowry, Hunter & Tikalsky, Waukesha, for relators.

Callahan, Arnold & VanMetre, Columbus, for respondent.

HALLOWS, Justice.

The sole question is whether the trial court had jurisdiction to grant a voluntary nonsuit to the plaintiff D'Amato while an appeal of the relators in this proceeding from the order overruling their demurrer to the amended complaint was pending in this court. The trial court noted in its memorandum decision and D'Amato argues in his brief that the motion for a nonsuit was pending in the trial court at the time the appeal was taken, but we think that fact is not material on the question of the trial court's jurisdiction.

The question here presented is not in effect unlike the trial court's order striking a notice of appeal in Congregation of Immaculate Conception of Barton v. Hellstern (1900), 105 Wis. 632, at p. 635, 81 N.W. 988, at p. 989, in which this court said: 'This court is willing that its burdens may be lightened in any legitimate way, but it cannot recognize the right of the lower court to dispose of cases that have been removed to this court in the way pointed out by statute.'

The general rule relating to the effect of an appeal on the jurisdiction of the trial and appellate court is that in the absence of a contrary statute an appeal duly perfected divests the trial court of jurisdiction of the subject matter of the appeal and transfers it to the appellate court where it remains until the appellate proceeding terminates and the trial court regains jurisdiction. Anno., 89 A.L.R.2d 1236. The rule is stated substantially the same in 4 Am.Jur. (2d), Appeal and Error, p. 830, sec. 352, and in 4A C.J.S. Appeal and Error § 607, p. 395, where reference is made to exclusive power or the cause, action or subject matter. In the very early case of Waterman v. Raymond et al. (1856), 5 Wis. 185, the court in deciding it had the power to order a stay of proceedings in the trial court during an appeal said, '* * * the appeal removes the subject matter, and all matters connected therewith, to this court, and is thenceforth under its control.' The concept that the appellate court in the absence of statute has exclusive jurisdiction over the subject matter of the appeal for appeal purposes runs through all the Wisconsin cases although it is recognized there is a diversity in the language in stating the rule and the determinations of what constitutes the subject matter of an appeal.

It is necessary in the orderly administration of justice that the appellate court should have exclusive jurisdiction over the disposition of the appeal and the determination of its merits, but in matters not directly concerned with the appeal but still part of the case the trial court might properly have jurisdiction. Estate of Mayer (1966), 29 Wis.2d 497, 139 N.W.2d 111. See Ott v. Boring (1907), 131 Wis. 472, 110 N.W. 824, 111 N.W. 833, (trial court's jurisdiction 'suspended' during appeal--'Both courts cannot have jurisdiction of the cause'). Consequently, in Kelly v. Chicago & Northwestern R. Co. (1887), 70 Wis. 335, 35 N.W. 538, it was recognized that the trial court pending an appeal had the power to correct its own record to conform to the judgment pronounced, but the appellant was entitled to have this court pass upon the uncorrected order where that order correctly reflected the pronouncement of the court so far as it went but omitted a second ground for the order. Likewise, in Jones v. Providence Washington Ins. Co. (1912), 151 Wis. 274, 138 N.W. 1005, the court pointed out that notwithstanding the positive language used in prior cases there was a 'qualified jurisdiction' after appeal still remaining in the circuit court which may be called into activity by permission of this court. But, this must be read in the context of what the court did--remanded the cause on appeal so that a motion to set aside the verdict could be made in the trial court. It was held in State ex rel. Zabel v. Municipal Court (1923) 179 Wis. 195, 190 N.W. 121, 191 N.W. 565, the trial court had no power to suspend a sentence in a criminal case and to place the defendant on probation while the judgment of conviction was on appeal because such action was an inference with the 'status or course of the proceedings resulting in the judgment' appealed.

However, the trial court has no power to dismiss a case when it is on appeal because the dismissal is an interference with appellate jurisdiction over the subject matter and defeats the right of the opposing party to a determination of the appeal. See 4 Am.Jur. (2d), Appeal and Error, p. 832, sec. 352; Peterson v. Peterson (1956), 208 Or. 131, 292 P.2d 130, 300 P.2d 443; State v. Jackson (1961), 228 Or. 371, 365 P.2d 294, 89 A.L.R.2d 1225; and Anno., Jurisdiction to proceed with trial or criminal case pending appeal from order overruling demurrer, motion to quash, or similar motion for dismissal, 89 A.L.R.2d 1236. The statement in Callaghan's Wisconsin Pleadings & Practice, p. 478, sec. 52.62, 'Thus, pending appeal from an order sustaining a demurrer to a complaint the trial court has jurisdiction to enter a judgment dismissing the complaint's is misleading.

The authority for this statement is Nickoll v. North Avenue State Bank (1941), 236 Wis. 588, 295 N.W. 715. But in Nickoll the intermediate order appealed from was self-executing and provided for a dismissal of a complaint unless certain conditions were met. These conditions were not met but an appeal was taken without staying the order. During the appeal a motion was made to restrain the court from entering a judgment dismissing the complaint and this court held the trial court continued to be vested...