Village of Brown Deer v. City of Milwaukee

• Citation: 8 Wis.2d 631,99 N.W.2d 860
• Parties: VILLAGE OF BROWN DEER, a municipal corporation, Plaintiff-Appellant, v. CITY OF MILWAUKEE, a municipal corporation, et al., Defendants-Respondents, Cross-Appellants, Town of Granville, a body corporate, et al., Defendants.
• Decision Date: 18 December 1959
• Court: Wisconsin Supreme Court

Page 860

99 N.W.2d 860

8 Wis.2d 631

VILLAGE OF BROWN DEER, a municipal corporation, Plaintiff-Appellant, v. CITY OF MILWAUKEE, a municipal corporation, et al., Defendants-Respondents, Cross-Appellants, Town of Granville, a body corporate, et al., Defendants.

Supreme Court of Wisconsin.

Dec. 18, 1959.

Harold H. Fuhrman, John P. Roemer and Ralph M. Hoyt, Special Counsels, Milwaukee, for appellant.

Walter J. Mattison, City Atty., Richard F. Maruszewski and John F. Cook, Asst. City Attys., Milwaukee, Harry G. Slater, Deputy City Atty., Milwaukee, of counsel, for respondents.

BROADFOOT, Justice.

By sec. 269.56, Stats., Wisconsin enacted the Uniform Declaratory Judgments Act. This action was brought under that statute. The trial court was asked to pass upon the validity or invalidity of certain ordinances adopted by each of the municipalities, all of which were enacted with a view to annexing certain territory in the then town of Granville.

This was truly an adversary proceeding with each step in the long trial bitterly contested. It was evident to the trial court that each municipality intended to litigate the issues through the highest possible tribunal. Although we are certain the trial court did not anticipate a reversal of the judgment in any particular, he did realize that confusion might result if there was even a partial reversal. His order, which would have the effect of maintaining the status quo, contained an element of practicality. However, bitter adversaries are not always practical, nor do they welcome practical suggestions. Therefore we must analyze the order in the light of the applicable law.

The declaratory judgment entered herein determined the issues presented without ordering anything further to be done. Neither party was commanded to do anything nor was either party ordered to refrain from doing anything therein. The judgment stands by itself and no execution or other process is required by its terms. Therefore the portion of the order staying execution of the judgment is without meaning.

The city of Milwaukee relies principally upon the case of Slabosheske v. Chikowske, 273 Wis. 144, 77 N.W.2d 497. The village contends that the issues raised by this appeal are moot by virtue of an automatic statutory stay of judgment because the appeal is by a municipality. In support of its position it cites sec. 274.26, Stats., which provides that an appeal by a municipal corporation stays the execution or performance of the judgment or order appealed from and no undertaking be given. That contention is answered in the Slabosheske Case, supra, wherein we said (273 Wis. at pages 153-155, 77 N.W.2d at page 502):

'* * * It appears, then, that the appeal of State ex rel. Oelke v. Doepke [260 Wis. 493, 51 N.W.2d 10], supra, by itself, operated, as appellants contend, to stay the execution of the judgment of the trial court, or as a supersedeas, although no stay was asked or security given. (The terms stay and supersedeas are used interchangeably in the texts and decisions.) But while appellants are correct in their contention their prospects are not brightened, for such a stay or supersedeas merely 'stays the proceedings of the body or tribunal which made the determination sought to be reviewed.' Hedberg v. Dettling, 1929, 198 Wis. 342 (344), 224 N.W. 108, 109. More recently, Mr. (Chief) Justice Rosenberry, speaking for the court in Carpenter Baking Co. v. Bakery Sales Drivers Local Union, 1941, 237 Wis. 24, 29 (30), 296 N.W. 118, 121, defined the scope of such a stay by quoting from Sixth Avenue R. Co. v. Gilbert El. R. Co., 1877, 71 N.Y. 430, as follows:

"'By the appeal [from the judgment], with a stay of proceedings on the part of the plaintiff in execution of the judgment the judgment was not annulled, or its obligations upon the defendant impaired, but its 'execution' was stayed--that is, the plaintiff was prohibited from issuing process in execution of it. * * *'"

'Thus it may be conceded that the appeal from the judgment of State ex rel. Oelke v. Doepke, supra, without any bond or other security, was effective to stay the proceedings of the trial court, as the tribunal whose determination was in process of review, but the appeal had no such effect upon any other body such as District 7 which had been revived by the judgment but had not, by it, been commanded to do or refrain from doing anything and which neither asked nor required any proceedings by the trial court in aid of its operations. 'Supersedeas may not be used as a remedy against persons acting independently of a court and without the aid of its process.' 83 C.J.S. Supersedeas § 3, p. 893.

"(2, 3) This is not like a case where an execution or order of the court is necessary to enable the party to reap the fruits of his decree. It acts proprio vigore upon the res--the right to use the water. Day v. Holland, 15 Or. 464, 15 P. 855. The appeal and the undertaking given did not stay the operation of the decree. It only stayed the issuance of an execution for costs and disbursements. * * *' Porter v. Small, 1912, 62 Or. 574 (588), 120 P. 393, 397, 124 P. 649, 40 L.R.A.,N.S., 1197.'

It is contended by the city, without denial by the village, that the direct result of the declaratory judgment is that the areas described in ordinances No. 31, 35 and 53 of the village of Brown Deer have been in the city since the consolidation of the town of Granville with the city. Other statutes not in issue require the city to provide certain municipal services to persons residing within its boundaries. Even though the village has stated that it is willing to assume those duties...