Pick v. Pick , 245 Wis. 496 ( 1944 )

MOTION TO DISMISS. On December 6, 1940, Mellita Pick and Andrew J. Pick commenced this action against Marjory Pick, John Pick, and Milwaukee Automobile Insurance Company to recover damages sustained by reason of personal injuries to Mellita Pick, who was a passenger in an automobile driven by Marjory Pick. The action was tried to a jury, and a special verdict rendered. On July 15, 1943, judgment was entered in favor of plaintiffs against Marjory Pick and Milwaukee Automobile Insurance Company, defendants. Defendants served notice of appeal to the supreme court on the 29th day of July, 1943, and pursuant to stipulation and agreement of the parties in writing the trial judge made the following order:

"Upon the annexed stipulation and agreement,

"It is ordered, that in lieu of the requirements of section 274.11 (3) and section 274.17, Wisconsin statutes, that the defendant, Milwaukee Automobile Insurance Company, shall deposit with the clerk of this court the sum of eleven thousand two hundred ($11,200) dollars, and that upon deposit of said sum, the appeal in this action shall be deemed perfected, and execution on said judgment against the defendant, Milwaukee Automobile Insurance Company, shall be stayed as effectively as though the above provisions of the statutes were strictly complied with."

This order was dated the 29th day of July, 1943, the date of the appeal. On November 26, 1943, plaintiffs' attorney served notice of motion to dismiss defendants' appeal for the reason that no appendix or briefs had been served or filed. The motion was heard on December 7, 1943, and on said date the court ordered defendants' appeal dismissed. The record was returned to the circuit court for Washington county on the 27th day of December, 1943.

Defendants served a new notice of appeal on plaintiffs' attorney on the 14th day of January, 1944. On August 22, 1944, plaintiffs' attorney served notice of motion to dismiss the appeal taken on the 14th day of January, 1944, for the following reasons: (1) That no undertaking for costs has been served or any notice of making any deposit in lieu of such undertaking, and (2) that no return on appeal has been made to or filed in the above court, although more than twenty days have elapsed since the taking of said appeal. This motion was heard on the 12th day of September, 1944, at which time the return on the appeal had been filed with this court but no undertaking for costs or notice of making any deposit in lieu of such undertaking had been served, unless the order of the trial court made on the first appeal was sufficient to comply with this requirement.

Defendants' attorney filed affidavits showing that he suffered from a nervous condition which incapacitated him from attending to the duties of his practice for a period of more than a year, but there was no affidavit of an attending physician substantiating this fact. Plaintiffs' attorney filed an affidavit setting forth that defendants' attorney was in fact attending to legal business, making appearances in court, and drafting and filing pleadings during the entire period from when the first appeal was taken, setting forth the names and numbers assigned to cases in the records of the clerk of the circuit court for Milwaukee county and the clerk of the civil court for Milwaukee county, wherein defendants' attorney filed answers for Milwaukee Automobile Insurance Company, one of the defendants in this case, in nineteen separate actions during the years 1943 and 1944. A deposit was made with the clerk of the circuit court, where the action was tried, by the Milwaukee Automobile Insurance Company in lieu of an appeal undertaking required by sec. 274.11 (2), Stats., and to stay execution on the judgment as provided by sec. 274.17, pursuant to an order of the trial court on the date the first appeal was taken. So far as the record shows, this deposit is still on file. Whether this is sufficient to constitute an undertaking for costs or deposit in lieu thereof, as required by sec. 274.11 (2), where the first appeal was dismissed and a second appeal is taken, is one of the questions presented. We consider it is not a compliance with the statute. Where an appeal is dismissed the appeal bond or undertaking, or deposit of money in lieu thereof, falls with it, and on a second appeal a new undertaking or deposit must be given to perfect it. Lavigne v. May, 2 Mart. (N.S.) La. 628; Spence v. Tapscott, 93 N.C. 250;Coburn v. Board of Commissioners, 10 S.D. 552,74 N.W. 1026; Stoner v. Spencer, 32 Tex. 653; 3 C.J.p. 1115, sec. 1151, note 22. When the first appeal was dismissed on December 7, 1943, and the record returned to the trial court, appellants were in the same position as though no appeal had been taken, so far as perfecting a second appeal. It was necessary to make a new return to this court and serve a new undertaking for costs or deposit of money in lieu thereof. The order of the court on the first appeal, approving the deposit of money in lieu of undertaking for costs, was only effective as to the first appeal and was not a continuing deposit which would comply with the statute where a second appeal was taken. Manifestly, the dismissal of an appeal for failure to comply with statutory requirements remits the parties and the case to prior existing conditions, leaving unimpaired the statutory right to take and perfect an appeal at any time within the period provided by law.

This brings us to the question of whether further extension of time should be granted under Rule 61 of the Supreme Court Rules or under sec. 274.32, Stats. There is no showing of mistake or inadvertence, the only question being of excusable neglect which could warrant a further extension of time. The first appeal was taken on July 29, 1943, and was dismissed on December 7, 1943, because no briefs or appendix were served. A second appeal was taken on January 14, 1944, which was the last day on which an appeal could be taken. The return was not filed with this court until August 18, 1944, which appeal was not perfected by the service of an undertaking for costs or the deposit of money instead, or the waiver thereof. More than a year has expired since the first appeal was taken, and while appellants' attorney claims to have been incapacitated due to illness, the record clearly shows that he was attending to legal business, making appearances in court, and drafting and filing pleadings during this entire period. The respondent is entitled to have this litigation terminated. The action was started December 6, 1940, which is nearly four years ago. There is nothing in the record to indicate that the respondents have in any way occasioned any delay in the proceedings, and appellants have failed to make a showing of excusable neglect.

This court said in Goerlinger v. Juetten, 237 Wis. 543, 550,297 N.W. 361, where notice of appeal was duly served and the defendant failed to serve an undertaking for costs or deposit of money instead, or the waiver thereof, —

"There was no waiver of the required undertaking in the instant case, therefore the plaintiff's motion to dismiss the appeal of defendant Bohman must be granted."

It follows that the motion to dismiss this appeal be granted.

By the Court. — The appeal of the defendants, Marjory Pick and Milwaukee Automobile Insurance Company, is dismissed.