Wehr v. Gimbel Bros., Inc.
| Decision Date | 16 November 1915 |
| Citation | 154 N.W. 972,161 Wis. 485 |
| Parties | WEHR v. GIMBEL BROS., INC. (WEHR BLDG. CO. ET AL., INTERPLEADER.) |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.
Action in equity by Henry Wehr against Gimbel Brothers, Incorporated. From orders on motion of the defendant interpleading the Wehr Building Company and the City of Milwaukee and allowing defendant Gimbel Brothers to serve a cross-complaint in equity against plaintiff and the interpleaded defendants, plaintiff and the Wehr Building Company appeal. Appeals dismissed.Kronshage, Hannan & McMillan, of Milwaukee, for appellant Henry Wehr.
Lines, Spooner, Ellis & Quarles, of Milwaukee, for appellant Wehr Bldg. Co.
Glicksman, Gold & Corrigan, of Milwaukee, T. M. Kearney, of Racine, and Daniel W. Hoan, City Atty., of Milwaukee, for respondents.
The appeals here are by the plaintiff Wehr and the interpleaded defendant the Wehr Building Company from orders made on motion of the defendant Gimbel Bros., interpleading the Wehr Building Company and the city of Milwaukee as defendants in the equitable action originally brought by said Wehr against the Gimbel Bros., and allowing the said Gimbel Bros. to serve a cross-complaint in equity against Wehr and the interpleaded defendants.
The first question arising in the case is whether the orders are appealable. The only ground upon which the appellants attempt to sustain their appealability is that they are final orders affecting a substantial right made upon summary application after judgment and hence are within subsection 2 of section 3069, Statutes, governing appealable orders. It seems quite clear that there is no other provision of the section under which it can be claimed that the orders are appealable. The question is therefore whether judgment had previously been rendered in the action. It is admitted that no formal written judgment had been filed, but it is claimed that judgment had been pronounced from the bench, and that under the decisions of this court ending with the case of Wallis v. First Nat. Bank, 155 Wis. 533, 145 N. W. 195, this was an effective final judgment closing the case.
The determination of this question rests chiefly upon the proper construction to be given to certain entries upon the minutes of the clerk of the court which appear in the record.
The action was originally brought by Henry Wehr in June, 1907, against his tenants, the Gimbel Bros. Corporation, to prevent them from erecting a building upon the leased premises, and the question involved related to the location of the east line of the demised premises upon the Milwaukee river, and was another phase of the controversy involved in the case of Milwaukee v. Gimbel Bros., 130 Wis. 31, 110 N. W. 7. It is not considered that it would be helpful here to state the details of the litigation. An answer was filed and the cause came on for trial May 21, 1909. The following entry appears upon the daily minutes of the clerk upon that day:
Henry Wehr v. Gimbel Brothers.
May 21, 1909, Before Hon. L. W. Halsey.
This action being on the day calendar and reached in its regular order was called for trial, Van Alstine & Killilea appearing for plff., and Winkler, Flanders, Bottum & Fawsett appearing for deft., trial proceeded witness sworn, testimony closed deft. moves that plff.'s complaint be dismissed upon the merits with costs, motion granted as per findings to be filed.
No further entries appear in May or June, but in July the following entries appear in the order given, viz.:
Henry Wehr v. Gimbel Brothers.
July 16th, 1909.
The court by request of H. J. Killilea plaintiff's counsel, and upon the court's own motion, orders, that the matter as to a rehearing, be continued to July 21, 1909.
July 21, 1909. Before Hon. L. W. Halsey.
The matter as to a rehearing continued to July 22, 1909.
July 22, 1909.
The matter as to a rehearing,...
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Kausch v. Chi., Milwaukee Elec. Ry. Co.
...The oral judgment of the court is sufficient. Wallis v. First National Bank of Racine, 155 Wis. 533, 145 N. W. 195;Wehr v. Gimbel Brothers, 161 Wis. 485, 154 N. W. 972. But whether there was such an oral judgment does not appear from the record before us, so that we are unable to determine ......
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Burnham Bros. Brick Co. v. Riesen
...Allen v. Voje, 114 Wis. 8, 89 N. W. 924;Wallis v. First Nat. Bank, 155 Wis. 533, 537, 538, 145 N. W. 195;Wehr v. Gimbel Brothers, 161 Wis. 485, 486, 154 N. W. 972;Will of Burghardt, 165 Wis. 312, 314, 162 N. W. 317. Such order of dismissal ended the proceedings, removed the litigation from ......
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State ex rel. Portykus v. Schinz
...order of the court as effectively as though entered in writing. Wallis v. First Nat. Bank, 155 Wis. 533, 145 N. W. 195;Wehr v. Gimbel Bros., 161 Wis. 485, 154 N. W. 972;Will of Burghardt, 165 Wis. 312, 162 N. W. 317. [4] A question is raised as to whether section 2878 is applicable to cases......
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Karshian v. Milwaukee Elec. Ry. & Light Co.
...court. See the following cases, cited in plaintiff's brief: Kausch v. C. & M. E. R. Co., 176 Wis. 21, 186 N. W. 257;Wehr v. Gimbel Brothers, 161 Wis. 485, 154 N. W. 972;Wallis v. First Nat. Bank, 155 Wis. 533, 145 N. W. 195;German American Bank v. Powell, 121 Wis. 575, 99 N. W. 222;Allen v.......