State ex rel. Hernandez v. McConahey
Decision Date | 06 May 1969 |
Docket Number | No. 239,239 |
Citation | 42 Wis.2d 468,167 N.W.2d 412 |
Parties | STATE ex rel. August HERNANDEZ, Appellant, v. George McCONAHEY, Clerk of Courts, Fond du Lac County, Wisconsin, Respondent. |
Court | Wisconsin Supreme Court |
A. D. Sutherland, Fond du Lac, for appellant.
Frederick K. Foster, Corp. counsel, Fond du Lac, for respondent.
The appeal must be dismissed for two reasons: (1) There is no order nor judgment in the record to be appealed from, and (2) the question is moot.
The issue was presented to the circuit court on the petition, which contained a stipulation of facts, and upon arguments of counsel. In the memorandum opinion filed by Judge MURPHY, he rejected the contention that the statute was unconstitutional and concluded the statutory fee to be advanced was $37 rather than the $44 demanded by the clerk, and that the clerk make such charge; and that the petitioner was entitled to a trial by jury.
The memorandum opinion does not direct the clerk to call a jury, nor does the record reveal any order or judgment of any kind directing the clerk to do anything or refrain from doing anything.
The notice of appeal states it is taken from a judgment--there is no judgment. The brief of the appellant-petitioner states it is from an order--there is no document of any kind designated as an order, nor one that can be considered an appealable order.
In Estate of Baumgarten (1961), 12 Wis.2d 212, 219, 107 N.W.2d 169, 173, 2 we stated:
The record on appeal reveals that the respondent, Clerk of Courts, made a motion to dismiss this appeal upon the ground that the petitioner had not appealed from an appealable order or judgment. On December 11, 1968, we denied the motion. We now consider our order denying the motion to dismiss the appeal was improvident and is set aside.
The memorandum opinion of the trial court does contain conclusions of law by the trial court but does not contain sufficient order or direction to constitute an appealable order. The duty rests upon counsel to obtain a sufficient order or judgment upon which to predicate an appeal. We cannot supply the deficiency.
We also conclude that the question sought to be litigated on this appeal is moot:
. State v. Zisch (1943), 243 Wis. 175, 177, 9 N.W.2d 625, 627. 3
The action referred to, in the petition for a writ of mandamus in Branch II of the county court of Fond du Lac county, arose as the result of a complaint that the petitioner, August Hernandez, had, on June 16, 1968, violated two sections of a city traffic ordinance. That case has been tried by a jury and judgment entered. It is now on appeal in this court, was argued as a companion case, and is determined by our opinion rendered today. 4
We take judicial notice of the record of both of these cases upon appeal. The record in the traffic ordinance case reveals: The complaint was filed June 19, 1968; the defendant appeared and demanded a 12-man jury; on September 18, 1968, trial was had before the court and a jury; the jury returned a verdict of not...
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...effect upon an existing controversy.' Schwarzbauer v. Menasha (1966), 33 Wis.2d 61, 63, 146 N.W.2d 402; State ex rel. Hernandez v. McConahey (1969), 42 Wis.2d 468, 471, 167 N.W.2d 412; Fort Howard Paper Co. v. Fort Howard Corp. (1956), 273 Wis. 356, 360, 77 N.W.2d 733; State v. Zisch (1943)......
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...from was the court's memorandum decision. A judge's opinion or decision is in itself never appealable. State ex rel. Hernandez v. McConahey (1969), 42 Wis.2d 468, 470, 167 N.W.2d 412. While the memorandum decision may well have affected a substantial right, it did not prevent a judgment fro......
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...285 (1978); Racine v. J-T Enterprises of America, Inc., 64 Wis.2d 691, 700, 221 N.W.2d 869 (1974); State ex rel. Hernandez v. McConahey, 42 Wis.2d 468, 471, 167 N.W.2d 412 (1969); Fort Howard Paper Co. v. Fort Howard Corp., 273 Wis. 356, 360, 77 N.W.2d 733 (1956); Thoenig v. Adams, 236 Wis.......
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