State ex rel. Hildebrand v. Kegu
| Decision Date | 05 June 1973 |
| Docket Number | No. 70,70 |
| Parties | STATE ex rel. Marge HILDEBRAND, Appellant, v. John KEGU, Respondent. |
| Court | Wisconsin Supreme Court |
Robert W. Warren, Atty. Gen., Madison, Robert P. Russell, Corp. Counsel, James W. Conway, Asst. Corp. Counsel, Milwaukee, for appellant.
Thomas R. Cannon, Morton M. Grodsky, Nancy Phelps and Jordan B. Reich, of Legal Aid Society of Milwaukee, Milwaukee, for respondent.
The notice of appeal states that appeal is being taken from a 'judgment' entered on February 18, 1972. There is no judgment in the record, only a transcript indicating that on February 18, 1972, the court orally granted the defendant's motion to dismiss the complaint in this paternity case.
The first question is whether the pronouncement from the bench was an order or a judgment. The appellant calls it a judgment, and it is true, if the defendant is found to be the father of the child, the determination of the court is referred to in sec. 52.37, Stats., as a judgment. However, a paternity case is a special proceeding. Sec. 52.45. It has been held that a special proceeding is terminated by an order, and not a judgment, even though the statutes governing the special proceeding refer to the termination as a judgment. In re Henry S. Cooper, Inc. (1942), 240 Wis. 377, 2 N.W.2d 866. We do not decide whether, if a defendant in a paternity case is found to be the father of the child, the proceedings are terminated by a judgment or order. Sec. 52.37 is not applicable to this case because the decision was in favor of the defendant. The determination of the trial court was an order.
The second question is whether the order was made or entered in writing as required under sec. 270.53(2), Stats. If it was not, the appeal must be dismissed. Alsmeyer v. Norden (1961), 14 Wis.2d 451, 111 N.W.2d 507.
An order may be effective, even though it has not been reduced to writing. Baker v. Baker (1881), 51 Wis. 538, 8 N.W. 289. The judicial act is complete when the order is announced from the bench. Reducing it to writing is only a ministerial act to preserve the evidence of the order. German American Bank v. Powell (1904), 121 Wis. 575, 99 N.W. 222. However, that evidence is necessary to confer appellate jurisdiction. The lack of writing does not mean that there is no order. It simply means that we have no jurisdiction to review the order, because the right of appeal exists only from the time of entry of the order. Sec. 274.11(4),...
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...op., ¶¶ 10, 17, 37, 38. This focus is misguided. Appeal is taken from a written order or judgment. State ex rel. Hildebrand v. Kegu, 59 Wis.2d 215, 216, 207 N.W.2d 658 (1973); Jackson v. Gray, 212 Wis.2d 436, 442, 569 N.W.2d 467 As a result, the majority does not squarely address McClaren's......
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