Swan Boulevard Development Corp. v. Cybulski
| Decision Date | 27 June 1961 |
| Citation | 109 N.W.2d 671,14 Wis.2d 169 |
| Parties | SWAN BOULEVARD DEVELOPMENT CORP., a Wis. corporation, Respondent, v. Stanley J. CYBULSKI et al., Appellants. |
| Court | Wisconsin Supreme Court |
Certiorari. The plaintiff, on October 2, 1959, commenced this action by the service of a petition for writ of certiorari, the purpose of which was the voiding of the entire proceedings for the determination of the award for the acquisition of certain lands formerly owned by the plaintiff, Swan Boulevard Development Corporation. The trial court granted the writ. The defendants did not file a return to the writ, but made the following motions:
(1) Motion to quash or supersede the writ of certiorari.
(2) For an order directing the repayment by the plaintiff of the amount of $38,000, which it had withdrawn from the office of the clerk of the circuit court pursuant to court order, or in the alternative that the action of certiorari be dismissed.
(3) To quash the adverse proceedings against Clair R. Thompson, executive secretary of the board of assessment.
The trial court denied all of the defendants' motions and ordered that Clair R. Thompson, executive secretary of the board of assessment, be adversely examined. The trial court further ordered that the defendants make return to the writ and allowed motion costs against the defendants.
The appeal is taken by the defendants from the denial of the respective motions.
John J. Fleming, City Atty., Ewald L. Moerke, Jr., Harvey G. Odenbrett, Asst. City Attys., Milwaukee, for appellants.
Fox, Sheets & Kirst, Milwaukee, for respondent.
The trial court took judicial notice of all prior proceedings and determinations made by the other circuit judges of the several branches of the circuit court for Milwaukee county relating to the issues to the identical parcel of real estate, the subject of this litigation. This court likewise takes judicial notice thereof in so far as such prior proceedings and determinations are germane to a determination of the issues.
The plaintiff-respondent, Swan Boulevard Development Corporation (hereinafter referred to as 'Swan'), was the owner of certain real estate consisting of about 54 acres in the city of Milwaukee, which land was purchased for the total sum of $325,000. In April, 1957, the common council of the city of Milwaukee, at the request of the school board, instituted proceedings to acquire a parcel of this land pursuant to the provisions of the Kline Law.
The preliminary resolution of necessity, under sec. 3 of the Kline Law, was passed by the common council on April 4, 1956, and the necessity of taking was approved by the common council on June 11, 1957.
On October 25, 1957, a jury trial was held in the circuit court for Milwaukee county, in which a jury verdict of necessity was returned.
The property consisted of approximately 17 acres and is located in the center of the aforementioned 54 acres. The matter was then referred by the common council to the board of assessment for determination of damages, pursuant to sec. 9(1), ch. 275, Laws of 1931 (the Kline Law).
Notices of hearing were given to Swan on December 11, 1957, and on March 27, 1958. Swan appeared at both hearings represented by counsel, along with Mr. Posner, president of Swan.
On April 29, 1958, the common council confirmed the award of the board of assessment in the amount of $48,000. On or about July 2, 1958, the city deposited the sum of $48,000, the total amount of the award of damages, with the clerk of the circuit court for Milwaukee county.
Swan served a notice of appeal under the Kline Law which was filed on November 14, 1958, with the clerk of the circuit court for Milwaukee county. The appeal was assigned to that branch of the circuit court presided over by the Honorable Michael T. Sullivan, circuit judge. The city moved to dismiss on the grounds that the appeal was not timely filed inasmuch as it was filed more than twenty days after the award was confirmed by the common council on April 29, 1958.
On July 1, 1959, an order was entered dismissing the appeal and on December 21, 1959, judgment was entered accordingly.
Sometime prior to the entry of this judgment the city became aware of the fact that the property had a mortgage on it, and that Swan had defaulted on the terms and conditions of the note and mortgage. An action of foreclosure was started by the mortgagees. Thereafter, by agreement between the mortgagees and mortgagor a stipulation was entered into between the city of Milwaukee Swan and the mortgagees for the withdrawal of $38,000 of the $48,000 on deposit with the clerk of the circuit court. On March 2, 1959, such withdrawal was authorized by order of the circuit court, leaving $10,000 on deposit as bond. A partial release was executed by the mortgagees and recorded on March 12, 1959.
On March 15, 1960, Swan made a motion asking the court to direct the clerk of the circuit court to release and pay Swan the balance of the award of $10,000 held on deposit by the clerk. The motion was dismissed by order of the trial court.
On September 21, 1960, the city by motion requested the court to direct and order Swan to either repay the sums of money previously withdrawn with interest from the date of withdrawal, or in the alternative that the petition for the writ of certiorari be dismissed.
The defendants in support of their motion to quash the writ alleged that the proper party defendant should be the common council of the city of Milwaukee and not the board of assessment.
Therefore, the first issue to be determined is whether the city of Milwaukee is a necessary and proper party defendant under the Kline Law.
The pertinent provisions of ch. 275, Laws of 1931 (Kline Law), are as follows:
'An Act empowering any city to plan and make certain public improvements, to acquire or condemn property for public purposes and improvements * * *.'
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