State v. Donohue

• Decision Date: 01 November 1960
• Parties: STATE of Wisconsin, Respondent, v. James J. DONOHUE, Appellant.
• Court: Wisconsin Supreme Court

Page 844

105 N.W.2d 844

11 Wis.2d 517

STATE of Wisconsin, Respondent, v. James J. DONOHUE, Appellant.

Supreme Court of Wisconsin.

Nov. 1, 1960.

Runkel & Runkel, Port Washington, for appellant.

John W. Reynolds, Atty. Gen., LeRoy L. Dalton, Asst. Atty. Gen., for respondent.

CURRIE, Justice.

On this appeal the appellant-defendant raises but one issue, and that is whether the municipal court of Ozaukee county has jurisdiction over the subject matter of an action to enforce a statutory forfeiture. It points to the fact that nowhere in the enunciated powers and jurisdiction of such court as set forth in the act creating the same, ¹ is the court specifically given jurisdiction over such type of action.

The state has countered with three contentions, viz.:

(1) That the appeal must be dismissed because not timely taken;

(2) That the judgment rendered by the circuit court for Ozaukee county in the prohibition proceeding is res judicata in the instant appeal upon the issue of jurisdiction of the municipal court over the subject matter of the action; and

(3) That an action to enforce a statutory forfeiture is based upon implied contract, and the act creating the municipal court specifically confers jurisdiction upon it to try actions arising out of a contract wherein the amount claimed does not exceed $5,000.

Timeliness of Appeal

Sec. 274.04, Stats., limits the time within which an appeal may be taken to this court from an order to ninety days from the date of service of the notice of entry of the order. On the other hand, under sec. 274.01, Stats., the time for taking an appeal to this court from a judgment extends for a period of six months from the date of entry of the judgment.

If the instrument from which the appeal is taken is an order then the appeal was not timely taken because the notice of appeal was served more than ninety days after the state had served notice of entry of the same upon the defendant. However, if such instrument is in fact a judgment, and not an order, the appeal was taken within six months after its entry. The crucial question to be determined is whether the instrument appealed from is an order or a judgment.

Whether a written direction of a court constitutes a judgment or an order is not to be determined by the designation that the court which entered the same may have placed thereon. Werner v. Riemer, 1949, 255 Wis. 386, 402, 39 N.W.2d 457, 39 N.W.2d 917; Newlander v. Riverview Realty Co., 1941, 238 Wis. 211, 226, 298 N.W. 603, 135 A.L.R. 383; Lemon v. Aronson, 1917, 166 Wis. 146, 147, 164 N.W. 820; 5 Callaghan's Wisconsin Pleading and Practice, p. 289, sec. 37.03. No matter how designated, the test of whether its is an order or a judgment is the statutory definition of each set forth in sec. 270.53, Stats.

Sec. 270.53 defines 'judgment' and 'order' as follows:

'(1) A judgment is the final determination of the rights of the parties in the action.

'(2) Every direction of a court or judge made or entered in writing and not included in a judgment is denominated an order.'

Mr. Chief Justice Rosenberry pointed out in Kling v. Sommers, 1948, 252 Wis. 217, 220, 31 N.W.2d 206, that all determinations entered in special proceedings are orders and not judgments by reason of this statutory definition. Special proceedings frequently arise out of pending actions. Illustrations of this are an application, pursuant to sec. 260.19(1), Stats., by one not a party to intervene in the action; and an application by a party, pursuant to sec. 269.57(1), Stats., to inspect documents, books, or property.

Therefore, whether the determination appealed from here is a judgment or an order is dependent on whether the appeal from the municipal court to the circuit court is an action or special proceeding within an action. The affirmance of the municipal court action was a final determination of the rights of the parties so that it constitutes a judgment under the statutory definition unless the appeal itself was a special proceeding and not an action.

We deem the case of Swarthout v. Swarthout, 1901, 111 Wis. 102, 86 N.W. 558, to be decisive on such question of whether the appeal from the municipal court to the circuit court constitutes an action or special proceeding, and requires that we hold it to be the former. The appeal in that case was from a county court to the circuit court. We quote from the opinion in the Swarthout case as follows (111 Wis. at pages 106, 107, 86 N.W. at page 559):

'Whether the determination of a court is an order or a judgment within the meaning of the appeal statute, cannot always be solved by mere form. The nature of the adjudication and of the proceeding must be considered. A proceeding upon an appeal, as regards the appellate court, is an action, or a proceeding in the nature of an action, and the decision is a final determination of the rights of the parties in respect thereto. Section 2882, Rev.St.1898 [now sec. 270.53(1), Stats.]. Every appeal to the circuit court, to all intents and purposes, is an action in such court. It is 'an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right or the redress or prevention of a wrong.' Section 2595, Rev.St.1898 [now sec. 260.03, Stats.]. * * * The determination of the appeal was a final determination of the rights of the parties in respect to the matter at issue as regards the power of the circuit court, hence a judgment of that court.'

The foregoing extract from the Swarthout case opinion was cited with approval in Zbikowski v. Straz, 1940, 236 Wis. 161, 165, 167, 294 N.W. 541, which dealt with an appeal from the civil court of Milwaukee county to the circuit court for that county.

The attorney general in the instant appeal contends that the written direction of the circuit court, which affirmed the judgment of the municipal court, is an order because entered upon motion of the state. ² Because of this it is contended that Kling v. Sommers, supra, lays down the rule that any court determination entered pursuant to a motion is an order and not a judgment. We do not consider that this was what was held in the Kling case. In that case the motion was one to set aside an order confirming sale in a mortgage foreclosure action and the court determination that the instrument which denied the motion was an order and not a judgment. The rationale of such holding was that the matter determined was a special proceeding initiated by motion and not by summons or an original writ. In the instant case the...