Lamasco Realty Co. v. City of Milwaukee , 242 Wis. 357 ( 1942 )

A motion for rehearing has been made in the case of the Lamasco Realty Company and in the case of the Mariner Realty Company. Subsequent to the making and filing of the motions, the parties in each case entered into the following stipulation:

"Neither the appellant nor the respondent intended by the stipulation of facts or the testimony taken in connection therewith to present any issue to the trial court or to this court as to the scope or sufficiency of the protest and objections to the amount of assessment against its property which the appellant made to the board of assessment at the assessment hearing and at the review of the assessments by said board pursuant to section 9 (3) and (6) of chapter 275 of the Laws of 1931. The facts concerning such appearances were, therefore, not made a part of the record in these proceedings, either by stipulation or otherwise. Said issues were expressly reserved in stipulation of facts for trial in the circuit court and said court did not pass upon them in the interlocutory judgment expressly stating: ``Upon trial of the issues reserved, it will be determined whether any benefits accrued to appellant's property, and if so the amount thereof.'"

The stipulation was made without prejudice to the rights of either party thereto to proffer or object to proof concerning the appearance of each of said plaintiffs and the nature and scope of the protests and objections made by it to the board of assessment with respect to the amount of the special assessment against its property.

Inasmuch as it appears that the above plaintiffs did in fact object to the assessment against their respective properties and that the principal purpose of the motions for rehearing was to procure a modification of the mandate so that the plaintiffs in the above proceedings would be entitled to a trial upon the sole question of whether the amount assessed against their respective properties is in excess of the benefits thereto, and if so, in what amount, on the authority of Canfield v. BayfieldCounty (1889), 74 Wis. 60, 41 N.W. 437, 42 N.W. 100:

It is ordered that so much of the mandate as reverses the interlocutory judgment and directs dismissal of the appeal in each case, be and it is withdrawn.

It is further ordered that in each of said cases, the mandate be entered as follows: In the case of Lamasco Realty Company and in the case of Mariner Realty Company, subject to such modifications as are made by the opinion, the interlocutory judgment in each case is affirmed, with costs to the respondent.

It is further ordered that in the above cases, the motion for rehearing be and the same is denied without costs.