Waddell v. Mamat

Decision Date08 November 1955
Citation271 Wis. 176,72 N.W.2d 763
PartiesEdna WADDELL, Plaintiff and Appellant, v. Hasson MAMAT, Defendant and Appellant, Robert L. Andrews, Proposed Impleaded Defendant and Respondent.
CourtWisconsin Supreme Court

Further facts will be stated in the opinion.

Irving D. Gaines, Milwaukee, for Edna Waddell.

Raymond J. Moore, Milwaukee, for Hasson Mamat.

Quarles, Spence & Quarles, Milwaukee, Edmund W. Powell and Anton Motz, Milwaukee, of counsel, for respondent.

MARTIN, Justice.

Respondent raises the question whether this is an appealable order. The order denies to appellants a substantial right given them by sec. 85.05(3), Stats.1951. It is a right comparable to that granted under sec. 326.12, Stats. which has been held to be a provisional remedy. See Callaghan's Wisconsin Digest, Appeal and Error, sec. 197. An order denying such a right is appealable under sec. 274.33, Stats.

Sec. 85.05(3), Stats.1951, so far as material, provided:

'The use and operation by a nonresident of a motor vehicle over the highways of Wisconsin shall be deemed an irrevocable appointment binding upon him, his executor, administrator or personal representative by such nonresident of the commissioner of the motor vehicle department to be his true and lawful attorney upon whom may be served all legal processes in any action or proceeding against him or, his executor, administrator or personal representative, growing out of such use or operation resulting in damage or loss to person or property, and said use or operation shall be a signification of his agreement that any such process against him, or his executor, administrator or personal representative, which is so served shall be of the same legal force and validity as if served on him personally, or his executor, administrator or personal representative.'

In August, 1953, sec. 85.05, Stats. was simultaneously repealed and recreated by ch. 593, Laws 1953, which was published August 12, 1953. In recreating the section the above provision was omitted.

The primary question before us is the effect of ch. 593 on the substituted service in this case. Appellants cite sec. 370.04, Stats. which provides in part:

'The repeal of a statute hereafter shall not remit, defeat or impair any civil or criminal liability for offenses committed, penalties or forfeitures incurred or rights of action accrued under such statute before the repeal thereof * * *.'

As respondent points out, the right granted under sec. 85.05(3), Stats.1951 is not a right of action but a procedural right. In our opinion, however, its existence does not depend upon sec. 370.04.

The language of the 1951 statute is significant. At the moment Andrews drove his automobile on the highways of this state he appointed the commissioner of motor vehicles his agent for the service of process in any claim by a citizen of Wisconsin that might arise out of his use of our highways. Under the express terms of the statute that appointment was irrevocable. And when the accident occurred the procedural right of service on him through the commissioner accrued to any one who might have a claim against him as the result of that accident. The essential elements for the accrual of such right were present and complete on November 13, 1951,--the appointment of the commissioner had been made by Andrews' use of the Wisconsin highways; the accident had occurred giving rise to a claim against him. Such right could not thereafter be extinguished until the final adjudication of the claim brought into being by his use of the highways.

That an accrued or established right is not destroyed by repeal of the statute under which it came into existence is entirely consistent with the interpretation placed by the legislature on the effect of the 1898 repeals in sec. 371.03, Stats.:

'The repeal of said acts shall not affect any act done or right accrued or established * * * previous to the time when such repeal shall take effect; but every such * * * right * * * shall remain as valid and effectual as if the provision so repealed had remained in force * * *.'

Cases cited in the briefs in which the applicability of sec. 370.04 was considered are not in point here, but a discussion of one of them will serve to point up the attributes of the procedural right involved in this case.

Respondent cites Metropolitan Life Ins. Co. v. Wisconsin L. R. Board, 1941, 237 Wis. 464, 297 N.W. 430, where the labor board issued an order in proceedings under ch. 111, Stats.1937 requiring the employer to recognize a certain bargaining unit. The order was not enforceable until affirmed by the circuit court. Before such an affirmation of the order was made in the circuit court the legislature repealed ch. 111, Stats.1937 and enacted a new chapter. It was contended that the repeal nullified the board's order and that thereafter the court could not enforce it, but the lower court held that sec. 370.04, Stats. preserved the union's right to have the order confirmed and enforced because the requirement that the company bargain collectively constituted a 'civil liability' within the meaning of that section. On appeal this court disagreed on the ground that until confirmation and adjudication of enforcement by the circuit court, no right to enforcement had vested in the union and no civil liability had accrued which would be preserved under sec. 370.04.

In that decision the court frequently described the right ensuing by virtue of the order as an inchoate right. It could ripen into a right preserved by sec. 370.04 only upon the happening of a further event--the adjudication of the circuit court affirming the order.

Here, however, the right to serve process on the nonresident through the commissioner of motor vehicles was a fully accrued right prior to the repeal of sec. 85.05(3), Stats. Andrews' appointment of the commissioner as his...

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13 cases
  • Lands' End, Inc. v. City of Dodgeville
    • United States
    • Wisconsin Supreme Court
    • July 12, 2016
    ...by the court's discussions of the predecessor of Wis. Stat. § 990.04 (2013–14), Wis. Stat. § 370.04 (1953–54), in Waddell v. Mamat, 271 Wis. 176, 181, 72 N.W.2d 763 (1955), and Metropolitan Life Insurance Co. v. Wisconsin Labor Relations Board, 237 Wis. 464, 297 N.W. 430 (1941).¶ 90 Both Wa......
  • Frederick v. Goff
    • United States
    • Iowa Supreme Court
    • January 12, 1960
  • U.S. v. Zannino, 85-1070
    • United States
    • U.S. Court of Appeals — First Circuit
    • May 3, 1985
    ...McMillin, 150 Colo. 23, 370 P.2d 435 (1962) (en banc); In re Opinion of the Justices, 89 N.H. 563, 198 A. 249 (1938); Waddell v. Mamat, 271 Wis. 176, 72 N.W.2d 763 (1955); see generally 82 C.J.S. Statutes Sec. 435 at 1010-11 (1953). Thus, to hold that Congress did not intend to apply the "d......
  • Trinity Petroleum v. Scott Oil Co., 2005AP2837.
    • United States
    • Wisconsin Court of Appeals
    • September 20, 2006
    ...right which could ripen into a right preserved by the statute only upon the happening of a further event. See Waddell v. Mamat, 271 Wis. 176, 181, 72 N.W.2d 763 (1955) (addressing WIS. STAT. § 370.04, the predecessor statute). See also Niesen v. State, 30 Wis.2d 490, 491, 493, 141 N.W.2d 19......
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