Ver Hagen v. Gibbons

• Decision Date: 06 June 1972
• Docket Number: No. 45,45
• Parties: Jan K. VER HAGEN et al., Appellants, v. Harley GIBBONS, Respondent.
• Court: Wisconsin Supreme Court

Page 752

197 N.W.2d 752

55 Wis.2d 21

Jan K. VER HAGEN et al., Appellants, v. Harley GIBBONS, Respondent.

No. 45.

Supreme Court of Wisconsin.

June 6, 1972.

Action by appellants Jan K. Ver Hagen, Kathryn Ver Hagen and Sentry Insurance Company to recover for personal injuries and property damage suffered during a fire allegedly caused by the negligent construction of a fireplace by respondent Harley Gibbons.

Respondent moved for summary judgment on September 16, 1970. In support of this motion, respondent submitted a number of affidavits, which showed that the house was constructed in 1963 for Karl and Ada Lord, who owned the property at that time. Although respondent served as general contractor for the Lords, the fireplace itself was built by the masonry firm of Harold Molzahn, Jr., Inc. The masonry firm is insolvent and was not made a party to this action. The affidavits further alleged that respondent did not participate, directly or indirectly, in the supervision or contol over the construction of the fireplace by the employees of Harold Molzahn, Jr., Inc., and that there was no contractual relationship between respondent and appellants with respect to the construction of the house. The trial court concluded that these affidavits demonstrated that the fireplace was constructed by an independent contractor and, consequently, that respondent was not liable for any damages caused by alleged defects resulting from the negligence of the independent contractor. The trial court ordered that respondent's motion for summary judgment be granted; and, on December 16, 1970, a judgment dismissing the complaint was entered. Notice of entry of judgment was filed the same day.

On January 12, 1971, appellants moved for a rehearing on the motion for summary judgment and presented affidavits and copies of adverse examinations which supported appellants' contention that the fireplace was negligently designed and constructed and which described the relationship between respondent and the masonry company. The trial judge reviewed these affidavits, but determined that they did not alter his original decision. An order denying appellants' motion for rehearing was filed on March 16, 1971. On April 12, 1971, appellants filed a notice of appeal, which states that the appeal is from the 'Order Denying Motion For Rehearing on the order granting summary judgment dismissing the complaint made and entered . . . on the 16th day of March, 1971.' No appeal has been taken from the summary judgment itself.

Johns, Flaherty, Harman & Gillette, La Crosse, for appellants.

Steele, Smyth, Klos & Flynn, F. D. Papenfuss, La Crosse, for respondent.

HANLEY, Justice.

Although the appellants discuss the substantive question of the liability of a building contractor under these circumstances, we think that the primary issue is whether the order appealed from is appealable.

Respondent contends that the motion for rehearing was directed to the trial court's order for summary judgment and correctly notes that an order for judgment is not appealable. Sprangers v. Philippi (1971), 52 Wis.2d 403, 405, 190 N.W.2d 136. Respondent concludes, therefore, that an order denying a rehearing on an order for judgment is likewise not appealable. The contention is that appellants should have moved for vacation of the judgment and that an order denying such a motion is appealable under this court's holding in Sicchio v. Alvey (1960), 10 Wis.2d 528, 538, 103 N.W.2d 544. Appellants respond by requesting this court to ignore the title of their motion and to consider it a motion to vacate the judgment. However, even if the order were to be construed as one denying a motion to vacate the judgment, we think that the order is nonetheless unappealable.

Both parties to this appeal apparently misconstrue the holdings in Sicchio and other cases which accepted as appealable orders entered on motions to vacate or modify or for a rehearing on prior appealable orders or judgments. The appealability of such orders depends upon whether or not the issues presented in the postjudgment motion could have been reviewed on an appeal from the judgment itself. See: Walther, Appellate Practice in Wisconsin (1965), pp. 38--40, sec. 3.05. Thus, the following have been held to be appealable: An order granting an extension of the period of redemption from a judgment of foreclosure; ¹ an order extending the time to settle a bill of exceptions; ² an order denying the motion to offset the judgment; ³ an order refusing to set aside a cognovit judgment, where the moving papers alleged that the attorney who confessed judgment was not admitted to practice in the circuit court and that the complaint was defectively verified; ⁴ an order vacating a divorce judgment, where it was alleged that the husband had remarried within one year of the grant of divorce; ⁵ and an order denying a new trial based on newly-discovered evidence. ⁶ It is apparent that each of these orders dealt with issues which could not be reviewed upon an appeal from the final order or judgment.

On the other hand, it has frequently been held that an order entered on a motion to modify or vacate a judgment or order is not appealable where, as here, the only issues raised by the motion were disposed of by the original judgment or order. This principle was stated in Fred Miller Brewing Co. v. Knebel (1919), 168 Wis. 587, 588, 589, 171 N.W. 69, 70:

'For more than 30 days after service upon him of notice of the entry of the order of March 6, 1918, no attempt was made by the receiver to give any notice of intention to appeal therefrom. By the order to show cause of April 24th, he...