State ex rel. Opelt v. Crisp

• Decision Date: 30 November 1977
• Docket Number: No. 75-791,75-791
• Citation: 260 N.W.2d 25,81 Wis.2d 106
• Parties: STATE ex rel. Jean OPELT and Tammy, a minor child, Respondents, v. Donald Roy CRISP, Appellant.
• Court: Wisconsin Supreme Court

Page 25

260 N.W.2d 25

81 Wis.2d 106

STATE ex rel. Jean OPELT and Tammy, a minor child, Respondents, v. Donald Roy CRISP, Appellant.

No. 75-791.

Supreme Court of Wisconsin.

Submitted Nov. 2, 1977.

Decided Nov. 30, 1977.

This is an appeal from an order of the county court of Milwaukee county denying the motion of Donald Roy Crisp, defendant-appellant, for an order compelling Jean Opelt, the complainant-respondent, to answer interrogatories in a paternity proceeding.

William J. Tyroler, Corrections Legal Services Program, Milwaukee, submitted brief for appellant.

Robert P. Russell, Corp. Counsel, Joseph A. Greco and Jon Erik Kingstad, Asst. Corp. Counsels, Milwaukee, submitted briefs for respondents.

CONNOR T. HANSEN, Justice.

On May 1, 1969, a complaint was filed in Milwaukee county court alleging that Donald Roy Crisp is the father of a daughter, born to Jean Opelt on January 6, 1968. A warrant was issued on April 29, 1969.

Crisp, who in 1969 was incarcerated in the Waukesha county jail, apparently did not receive notice of the paternity complaint until April 2, 1974, when the warrant was lodged as a detainer at the Wisconsin State Prison, where he was then imprisoned. Crisp requested a speedy trial, and a preliminary examination was eventually held, as provided in sec. 52.27, Stats., on March 27, 1975, in Milwaukee county court.

At the preliminary examination the complainant-Opelt testified and was cross-examined by counsel for Crisp, who was also present. The county judge found probable cause to believe that Crisp was the father of her child, who is now eight years old.

On February 11, 1976, the matter was referred for trial after Crisp's motion to dismiss for want of speedy trial was denied. Pursuant to sec. 804.08, Stats., Crisp's lawyer caused a set of interrogatories directed to Opelt to be served on her lawyers, Assistant Milwaukee County Corporation Counsel. The interrogatories consisted of 55 questions, some of them multiple. ¹

The interrogatories were not answered and Crisp brought a motion for an order directing that they be answered. Opelt's lawyer filed a written objection to the interrogatories stating that both Crisp and his lawyer were present at the preliminary examination at which time they had ample opportunity to fully question Opelt.

The trial judge found that the preliminary hearings provided in paternity proceedings " . . . make it possible for the defendant to elicit all the information that could be obtained by interrogatiries (sic). . . ." The trial court also pointed out that the Milwaukee County Corporation Counsel had approximately 50 paternity cases each week, and that to require corporation counsel to assist in the answering of burdensome interrogatories would seriously jeopardize their ability to function.

On the basis of this decision, an order was entered denying the motion of Crisp to require answers to the interrogatories. Crisp appeals from this order.

The following issues are presented:

1. Is an order denying a motion to require answers to interrogatories an appealable order?

2. Does the right to a preliminary hearing in paternity proceedings, under sec. 52.27, Stats., foreclose the defendant's use of interrogatories, under sec. 804.08, Stats.?

APPEALABILITY.

The respondent contends that the order of the trial court is not appealable.

An order which grants, refuses, continues or modifies a provisional remedy is appealable, sec. 817.33(3)(a), Stats., and statutory discovery devices are considered provisional remedies. Whanger v. American Family Mut. Ins. Co., 58 Wis.2d 461, 467, 468, 207 N.W.2d 74 (1973). The order before the court is therefore appealable if it can be said to "refuse" the provisional remedy of discovery by interrogatories.

In Chudnow Construction Corp. v. Commercial Disc., 60 Wis.2d 429, 210 N.W.2d 721 (1973), a circuit court order had denied a motion to require answers to certain interrogatories. In a per curiam opinion, this court held that the order of the circuit court was not appealable. This court explained, at 430, 210 N.W.2d at 722:

" . . . (Sec. 887.30, Stats., 1973) allows a party to serve written interrogatories upon another party, and in the event an answer is not forthcoming, to move the court in which the action is pending for an order compelling the party failing to answer the interrogatories to do so. In Hyslop v. Hyslop (1940), 234 Wis. 430, 291 N.W. 337, it was held that an order denying the defendant's motion to compel the plaintiff to answer certain questions on an adverse examination was not appealable. For the purpose of appealability of an order refusing to compel an answer, there is no difference between oral and written questions.

"The appeal is dismissed . . . ." (Emphasis added.)

We refer to Chudnow, supra, to point out that the decisions of this court distinguish between orders which effectively refuse a provisional remedy, and are therefore appealable; and orders which merely limit the scope of a provisional remedy, and are therefore not appealable. See, e. g. Buchen v. Wisconsin Tobacco Co. 59 Wis.2d 461, 469, 208 N.W.2d 473 (1973). The order in Chudnow merely limited the scope of discovery, while the order now before the court effectively refused the provisional remedy altogether.

The order in Chudnow refused to compel answers to particular questions in a set of interrogatories, on grounds of irrelevancy. The case was therefore similar to Hyslop v. Hyslop, 234 Wis. 430, 291 N.W. 337 (1940).

Hyslop involved an order which refused to compel answers to particular questions on an adverse examination, where claims of privilege and self-incrimination were raised with regard to those questions. The order was not appealable because " . . . an order limiting the adverse examination does not refuse or modify a provisional remedy." Rather, "(s)uch orders merely regulate the procedure upon the examination and do not operate upon the provisional remedy which the adverse examination constitutes." Hyslop, supra, at 434, 291 N.W. at 339.

This distinction was also set forth in State ex rel. Finnegan v. Lincoln Dairy Co., 221 Wis. 15, 265 N.W. 202 (1936), where this court stated that an order limiting the scope of a provisional remedy "does not suppress anything" but " . . . merely prescribes the field in which the provisional remedy may operate," by determining "what evidence may be elicited upon the examination" or by "determining the procedural steps which may properly be taken when the remedy is invoked in a particular case . . . ." Finnegan, supra, at 17, 265 N.W. at 203. See also: Buchen v. Wisconsin Tobacco Co., supra, at 467-471, 208 N.W.2d 473.

In contrast to orders which merely limit the scope of the discovery proceedings are orders which refuse, or effectively refuse, the provisional remedy altogether. Thus an order which suppresses an adverse examination is appealable. Condura Construction Co. v. Milwaukee Building Const. Trades Council, 8 Wis.2d 541, 549, 99 N.W. 571 (1959); Estate of Briese, 238 Wis. 6, 298 N.W. 57 (1941). Further an order which so restricts the scope of an adverse examination as to effectively suppress it is also appealable. Kuryer Publishing Co. v. Messmer, 162 Wis. 565, 156 N.W. 948 (1916).

Conversely, where a witness refuses to testify at all at an adverse examination, an order requiring him to answer the questions put to him has been held to be appealable. Phipps v. Wis. Cent. R. Co., 133 Wis. 153, 113 N.W. 456 (1907). In this setting " . . . the order was not a mere ruling on the admissibility of testimony, but was a directive granting plaintiff his provisional remedy." Walther, Appellate Practice in Wisconsin (1965), sec. 2.03, p. 17.

Therefore, an order which concerns the witness' duty to answer questions generally, and which is not directed to particular questions, may effectively grant or deny the provisional remedy. For purposes of appealability, there is no difference between an order denying a motion to compel answers at an adverse examination and an order denying a motion to compel answers to interrogatories. Chudnow, supra, at 430, 210 N.W.2d 721.

It follows from the foregoing that an order declining to compel answers to interrogatories is appealable if it effectively refuses the right to propound interrogatories under sec. 804.08, Stats. That is precisely the effect of the order before the court, which declined to compel answers to any interrogatories. Without the power to compel answers, the statutory right to propound interrogatories, if such a right exists, is meaningless. In Fanshaw v. Medical Protective Asso., 52 Wis.2d 234, 238, 190 N.W.2d 155 (1971), this court held that an appeal would lie from an order denying a motion to compel production of documents under sec. 269.57(4), Stats.1969, because the order denied a provisional remedy. The present order is appealable for the same reason.

The respondent also argues that the appeal will not lie because the appellant, Crisp, is not a "party aggrieved" within the meaning of sec. 817.10, Stats. ²

This court has stated that:

" . . . A person is aggrieved by a judgment whenever it operates on his rights of property or bears directly on his interest. An 'aggrieved party' within the meaning of a statute governing appeals is one having an interest recognized by law in the subject matter which is injuriously affected by the judgment." Greenfield v. Joint County School Comm., 271 Wis. 442, 447, 73 N.W.2d 580, 583 (1955); see also: Northland Greyhound Lines v. Blinco, 272 Wis. 29, 74 N.W.2d 796 (1956); and In re Fidelity Assur. Asso., 247 Wis. 619, 20 N.W.2d 638 (1945).

The essence of this requirement is that the judgment or order appealed from must bear directly and injuriously upon the interests of the appellant; he must be adversely affected in some appreciable manner.

We have no difficulty in arriving at the conclusion that for the purposes of this appeal, Crisp is an aggrieved party. He is the alleged father...