Wallis v. First Nat. Bank of Racine

• Decision Date: 03 February 1914
• Citation: 145 N.W. 195,155 Wis. 533
• Parties: WALLIS v. FIRST NAT. BANK OF RACINE.
• Court: Wisconsin Supreme Court

155 Wis. 533

145 N.W. 195

WALLIS

v.FIRST NAT. BANK OF RACINE.

Supreme Court of Wisconsin.

Feb. 3, 1914.

Appeal from Municipal Court, Racine County; William Smieding, Jr., Judge.

Action by Henry M. Wallis against the First National Bank of Racine. From an order denying plaintiff's motion to punish defendant's officers for contempt, plaintiff appeals. Affirmed.

Timlin, J., dissenting.Quarles, Spence & Quarles, of Milwaukee (J. V. Quarles, of Milwaukee, of counsel), for appellant.

Thomas M. Kearney, of Racine, for respondent.

BARNES, J.

An injunctional order was issued in this action on May 5, 1913, which was modified on May 31st. The trial of the case was concluded on June 13th, and the findings and judgment were signed on June 30th. On June 27th, the defendant, acting on the advice of its attorneys, caused the wall on the front of the 2 1/2-foot strip described in the opinion handed down on the appeal from the judgment in the above-entitled action to be torn down. After the entry of judgment, the plaintiff procured an order to show cause why the defendant bank, its president and cashier and its attorneys, E. B. Hand and W. D. Thompson, should not be punished for contempt for disobedience of the order of the court. The court adjudged the parties to be not guilty of contempt and ordered the proceeding dismissed. The plaintiff appeals from such judgment and order.

It is not claimed by the defendant that the injunctional order did not prohibit the action which it took on June 27th, although it does insist that the attorneys acted in good faith in giving the advice which they did, and that in any event they cannot be punished in this proceeding. Neither is it claimed by the appellant that, under the findings and judgment signed on June 30th, the defendant bank would not have the right to do the acts complained of if no continuance of the injunction had been secured under section 3061, Stats. At the conclusion of the trial on June 13th, the court announced its decision in the case, which decision was taken down by the court reporter. The judgment as signed was entered in accordance with such decision, at least in so far as it pertained to the right of the defendant bank to remove the wall which it caused to be torn down, although satisfactory findings were not prepared and signed until June 30th. It does appear from the affidavit of Mr. Thompson that on June 26th the court settled on the findings it would make.

The trial court held that, by the decision pronounced on June 13th, the injunctional order was modified so as to permit the bank to do the things complained of, and that plaintiff knew that it was defendant's purpose to remove the wall as soon as the restraint of the temporary injunction was removed, and that no request for a continuance thereof pending an appeal was made. The court further found that plaintiff suffered no damage or injury because of the acts complained of, and that such acts did not defeat, impede, or prejudice any of plaintiff's remedies or rights.

The defendant contends that the judgment of the court was pronounced on June 13th, and that the injunctional order was, by virtue of such decision, modified as of that date so as to permit the doing of the acts now complained of, and relies on the following decisions of this court to support such contention: Baker v. Baker, 51 Wis. 538, 548, 8 N. W. 289;Allen v. Voje, 114 Wis. 1, 8, 89 N. W. 924;German American Bank v. Powell, 121 Wis. 575, 577, 99 N. W. 222;Zahorka v. Geith, 129 Wis. 498, 505, 506, 109 N. W. 552; and Comstock v. Boyle, 134 Wis. 613, 617, 114 N. W. 1110, 126 Am. St. Rep. 1033.

[1][2][3][4][5] Section 2863, Stats., reads: “Upon a trial of a question of fact by the court its decision shall be given in writing and filed with the clerk within twenty days after the court at which the trial took place. Judgment upon the decision shall be entered accordingly, as of the term at which the cause was tried, and the judge shall state in his decision separately: (1) The facts found by him; and (2) his conclusions of law thereon.”

Clearly this statute contemplates the filing of a written decision by the court embodying its findings of fact and conclusions of law before judgment is entered, because it provides that judgment shall be entered on the decision and in accordance therewith. If the statute is mandatory, the statement made on June 13th is not the judgment of the court. Certain requirements of this statute have heretofore been held directory only. The provision requiring the written decision to be filed within 20 days after the court at which the trial took place is directory. Cramer v. Hanaford, 53 Wis. 85, 10 N. W. 15;Williams v. Ely, 13 Wis. 1;Body v. Jewsen, 33 Wis. 402;Klatt v. Mallon, 61 Wis. 542, 21 N. W. 532. It is not essential that the statutory mandate requiring the court to state its findings of fact and conclusions of law separately should be followed. Sherman v. Madison Mutual Ins. Co., 39 Wis. 104, 108;Willer v. Bergenthal, 50 Wis. 474, 7 N. W. 352. Neither is it necessary that the findings of fact and conclusions of law should be filed before the judgment is signed, but they may be embodied in the judgment itself. Wrigglesworth v. Wrigglesworth, 45 Wis. 255;Pier v. Prouty, 67 Wis. 218, 30 N. W. 232. The failure to make either findings of fact or conclusions of law is not reversible error, where the judgment shows that the necessary facts and conclusions must have been found in favor of the prevailing party and the evidence supports the judgment. Willer v. Bergenthal, 50 Wis. 474, 7 N. W. 352. And where the court fails to make such findings and conclusions as the statute contemplates, this court will adopt one of three courses: (a) Affirm the judgment if clearly supported by the preponderance of the evidence; (b) reverse if not so supported, or (c) remand for further trial and findings in close cases where the evidence is evenly balanced or nearly so. Damman v. Damman, 145 Wis. 122, 125, 128 N. W. 1062;Closuit v. John Arpin Lumber Co., 130 Wis. 258, 110 N. W. 222;Young v. Miner, 141 Wis. 501, 504, 124 N. W. 660;Brown v. Griswold, 109 Wis. 275, 85 N. W. 363;Jansen v. Huerth, 143 Wis. 363, 127 N. W. 945;Kelm v. Woodbury, 150 Wis. 499, 504, 137 N. W. 757;Whalen v. Lime Products Co., 143 N. W. 689.

[6][7] The precise question which we have before us now was before the court in Zahorka v. Geith, 129 Wis. 498, 505, 506, 109 N. W. 552. It was there held in a case tried by the court, and in which no findings of fact or conclusions of law were ever reduced to writing or filed, and where no judgment was ever signed or reduced to writing, that the decision of the court announced orally from the bench was the judgment in the case and was a valid judgment. It is true that in this case the clerk made a minute of the judgment pronounced, but his failure so to do would not have affected the validity of the oral judgment. The clerk's entry was not the judgment, but merely evidence of it, and the default of the clerk could not nullify the act of the court. Baker v. Baker, supra. This case (Zahorka v. Geith) decides that the requirement of section 2863, requiring findings of fact and conclusions of law to be filed before there can be a judgment, is directory, or else it must be said that the statute was entirely overlooked by the whole court when the case was decided. This assumption can hardly be indulged in with reference to a statute that is familiar to every practicing lawyer. The divorce judgment involved in the case could hardly be pronounced without taking proof as to the residence of the plaintiff and of her desertion by the defendant, and neither could judgment be rendered until the facts on each of these issues was found in favor of the plaintiff. The only way in which the result could be reached which was reached was to decide that the oral decision was in fact the judgment of the court, and that the court in reaching such decision necessarily reached the conclusion that the facts essential to make a case were proven, and that a valid judgment might be entered without any written decision making findings of fact and conclusions of law.

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