Sweeney v. Union State Bank , 248 Wis. 607 ( 1946 )

The following opinion was filed September 28, 1946:

Fritz, J.

(on motion for rehearing). In connection with considering and determining the matters stated in the opinion filed on April 29, 1946, due consideration was given to the contention, — which is repeated by appellants and the Union State Bank on a motion for rehearing, — that upon the motion of the respondents, Loretta Eastman, Nellie Allen, and Katherine and Julia Sweeney, for review under sec. 274.12, Stats., this court was without jurisdiction and those respondents were not entitled to have this court review, reverse, or modify the rulings and parts of the judgment which are described in the notice of the motion, as follows:

“1. The ruling of the trial court on the motion of undersigned counsel to exclude from the record the record of the evidence of Frank C. Meyer (Reference: Reporter’s paging 2 et seq. and 21 et seq. of proceedings Oct. 4, 1944).

“2. Those parts of the judgment dated February 15, 1945, admitting the will dated October 10, 1943, to probate and denying probate of the will dated June 15, 1939, it being the purpose of these respondents to request the supreme court to establish the will dated June 15, 1939, as the last will and testament of Richard J. Sweeney.”

Notice of that motion for review was duly served on the respondent, Union State Bank, as well as the appellants; and their appeal was from the judgment in its entirety. As that judgment was based in part upon the court’s determination that the will of June 15, 1939, was revoked by provisions to that effect in the will of October 10, 1943, which were testified to by Meyer, questions as to the admissibility of that testimony and the validity of the court’s conclusion and judgment based thereon were clearly involved on appellants’ appeal. Consequently the review sought in relation to the court’s rulings in those respects was clearly within the authorized purposes and scope of a motion to review under the provision in sec. 274.12, Stats. As we said in Hilam, Inc., v. Petersen Oil Co. 217 Wis. 86, 94, 258 N. W. 365,—

“The purpose of a motion to review is to reverse or modify some part of a judgment asserted to be erroneous as to the respondent or to have this court consider some ruling made upon a trial, so that in case of a reversal of the judgment, that error, if error it be, may not again occur.” See also Jones v. Pittsburgh Glass Co. 246 Wis. 462, 468, 17 N. W. (2d) 562.

As to how an appeal is to be taken and perfected it is provided in sec. 274.11, (1), Stats., that—

“An appeal is taken by serving a notice of appeal signed by the appellant or his attorney on each adverse party who appeared in the action or- proceeding. . . . On appeals from a judgment the appellant shall also serve the notice of appeal upon all parties bound with him by the judgment who have appeared in the action.”

And in sec. 274.12, Stats., it is provided that—

“Every party, other than the appellee, who is served with a notice of appeal shall within thirty days after such service . . . take and perfect his own appeal or be deemed to have waived his right to appeal. ... In any case the appellee may have a review of the rulings of which he complains, by serving upon the appellant any time before the case is set down for hearing in the supreme court, a notice stating in what respect he asks for a reversal or modification of the judgment or order appealed from. ...” ■

Under and by virtue of those provisions, and the facts (1) that Loretta Eastman, Nellie Allen, and Katherine and Julia Sweeney, as beneficiaries under the will of October 10, 1943, and also under the will of June 15, 1939, were adverse parties who had appeared in the proceeding, and (2) that appellants’ notice of appeal had been served on them, they had become appellees on the appeal taken by appellants. Consequently, as'such-appellees they were entitled, under the above-quoted provision in sec. 274.12, Stats., to have a review of the rulings of which they complain by serving upon appellants their notice stating in what respect they asked for a reversal or modification of the judgment appealed from. On the other hand, as they had become appellees by the service on them of appellants’ notice of appeal, there was not applicable to them the provision and requirement in sec. 274.12, Stats., that “Every party other than the appellee, who is served with a notice of appeal shall within thirty days after such service . . . take and perfect his own appeal or be deemed to have waived his right to appeal.”

In view of the above-stated circumstances in this case, there are not in point such cases as Ledvina v. Ebert, 237 Wis. 358, 296 N. W. 110, and Hilam, Inc., v. Petersen Oil Co., supra, in which the appeal was taken from only the part of the judgment that was not affected by, or as to which there were not involved the rulings specified in a notice for review. Neither are there in point such cases as Lezala v. Jazek, 170 Wis. 532, 175 N. W. 87, Stammer v. Kitzmiller, 226 Wis. 348, 276 N. W. 629, and Ledvina v. Ebert, supra, in which (1) an appeal was taken by, or the notice of appeal was served on, only some of the defendants, and a review was sought on a motion noticed by a defendant who had not appealed, or in which (2) plaintiff’s motion was for the review of rulings or provisions in a judgment in relation to a defendant who had not joined with other defendants in appealing from the judgment (Wisconsin Creameries, Inc., v. Johnson, 208 Wis. 444, 243 N. W. 498).

Upon due consideration of other matters presented in the briefs filed on the motion for rehearing or the modification of the mandate, it is our conclusion that there is no occasion to enlarge mpon the opinion heretofore filed herein.

By the Court. — Motion for rehearing denied without costs.

Rector, J., took no part.