Wetzler v. Glassner

• Decision Date: 13 January 1925
• Citation: 201 N.W. 740,185 Wis. 593
• Parties: WETZLER v. GLASSNER.
• Court: Wisconsin Supreme Court

185 Wis. 593

201 N.W. 740

WETZLER

v.GLASSNER.

Supreme Court of Wisconsin.

Jan. 13, 1925.

Appeal from Circuit Court, Milwaukee County; Gustave G. Gehrz and E. F. Fairchild, Judges.

Action by S. H. Wetzler against David M. Glassner. From an order setting aside a verdict for plaintiff, and granting a new trial with option of plaintiff to take judgment for $1,000, from an order denying plaintiff costs in a contempt proceeding brought against plaintiff and subsequently dismissed, and from an order refusing to set aside the order granting new trial, plaintiff appeals. Order setting aside verdict and granting new trial reversed, with directions to enter judgment for plaintiff on the verdict. Order denying costs in the contempt proceeding affirmed.

This action was brought by the plaintiff, a physician and surgeon of the city of Milwaukee, to recover the reasonable value of services performed by him for the defendant. The case was tried to a jury and the jury returned a verdict in favor of the plaintiff for $2,000. The case was tried on January 18, 1924. On the morning of January 26, 1924, the plaintiff moved for judgment upon the verdict and the defendant filed a motion for a new trial upon the usual grounds, and also “because the plaintiff wrongfully attempted to influence the action of the jury.” It appears that the trial occupied one day. The motion for a new trial was based upon the minutes of the court and upon the affidavit of William Glassner, in which affidavit it was alleged that at the noon recess on the day of the trial the plaintiff engaged a juror by the name of John J. Gleich in conversation; that the affiant heard the plaintiff invite the juror to luncheon; that immediately upon the extending of the invitation, plaintiff's counsel stated to the plaintiff that, inasmuch as Gleich was a juryman, it would be impossible to take him to lunch. Upon the alleged misconduct of the plaintiff coming to the notice of the court, the court instituted a summary hearing, and, after the hearing, set aside the verdict in furtherance of justice unless the plaintiff should elect within 10 days to accept $1,000. Thereupon the court directed the institution of contempt proceedings, and, on February 2, 1924, a formal order was entered setting aside the verdict. On February 19, 1924, an order to show cause was served upon the plaintiff, requiring the plaintiff to show cause why he should not be adjudged guilty of the alleged misconduct and contempt and punished therefor under section 3477, Wis. Stats. 1923.

The order to show cause was brought on before Hon. E. T. Fairchild, and, after a thorough and complete investigation, the proceeding was dismissed. There was a motion by the plaintiff to set aside the order granting a new trial, which motion was made in open court on the 7th day of March, 1924. The court denied the motion with $10 costs.

The plaintiff appeals from the three orders: First, that of February 2, 1924, setting aside the verdict and granting a new trial with the option of the plaintiff to take judgment for $1,000; second, that part of the order made by Judge Fairchild on February 25, 1924, denying the plaintiff costs in the contempt proceedings; and, third, from the order of court dated March 17, 1924, refusing to set aside the order granting a new trial.

Lamfrom & Tighe, of Milwaukee (Leon B. Lamfrom, of Milwaukee, of counsel), for appellant.

Olwell & Brady, of Milwaukee, for respondent.

ROSENBERRY, J. (after stating the facts as above).

[1][2][3] The contempt proceedings were brought under chapter 295, Wis. Stats., entitled: “Contempts in civil actions,” on the ground that plaintiff had been guilty of misconduct during the trial, which was calculated to defeat, impede, or prejudice the rights and/or remedies of the defendant herein, in the following respects:

“(1) That said plaintiff did, during the progress of the trial of this case and during one of the recesses of court, discuss with a third person in the presence of said juror Gleich, the amount of fees received by the Mayo Brothers for surgical operations.

(2) That said plaintiff did subsequently, during the trial of this case and at the noon recess of said court, approach said juror Gleich and invited said juror to lunch with him.”

While the proceeding is denominated a civil contempt and the procedure is that prescribed in chapter 295, nevertheless it was in the nature of a proceeding for criminal contempt. This matter has been fully and thoroughly discussed recently in State ex rel. Rodd v. Verage, 177 Wis. 295, 187 N. W. 830, 23 A. L. R. 491;Michaelson v. U. S. ex rel. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 45 S. Ct. 18, 69 L. Ed. 162, decided October 20, 1924. The real character of the proceeding is to be determined by the relief sought. The relief sought here was not to enforce a private right, but to punish the contemnor for a past offense. The proceedings were instituted upon the motion of the judge, an attorney was appointed as a friend of the court to prosecute the contempt proceedings, and the whole investigation was one to ascertain whether or not the plaintiff had in any way violated the law, and, if he was found guilty of such violation, to...