In Re Brand

^* Motion for rehearing denied, with $25 costs, on February 17, 1948. It appears that on or about December 13, 1941, Flossie Brand, wife of the appellant, filed a petition in the district court of Milwaukee county, praying that the court institute an inquiry to determine the mental condition of the appellant; that in response to the petition a hearing was had on December 17, 1941, notice of which was served on the appellant on December 15, 1941. On December 15, 1941, Alfred R. Gandrey, Esq., member of the bar of the state of Wisconsin, was appointed guardian ad litem charged with the duty of protecting the interest of the appellant. On December 17, 1941, hearing was had before Judge NEELEN, at which time the appellant appeared in person and by his attorney, Samuel J. Schrinsky, Esq., for judicial inquiry. Flossie Brand, Winifred Dennison, and Eunice Rankin, petitioners, were present as was also the guardian ad litem. Witnesses were sworn and on December 17th, Judge NEELEN appointed two physicians to examine the appellant who was alleged to be insane. On the 24th day of December, 1941, the physicians appeared before Judge NEELEN and filed their written findings and testified orally with respect to the condition of the appellant. Judge NEELEN then issued an order finding Willis Brand to be legally insane and issued a commitment committing him to the Milwaukee County Hospital for Mental Diseases until transferred to a United States Veterans' Administration Facility, which order was dated December 24, 1941, and on January 29, 1942, upon receipt of a letter from the superintendent of the Milwaukee County Hospital for Mental Diseases, stating that authorization had been received from the Veterans' Administration to transfer the appellant to Downey, Illinois, Judge NEELEN issued an order committing Willis Brand to the United States Veterans' Administration Facility at Downey, Illinois, where he remained until April 26, 1942, when he escaped, and thereafter on May 8, 1942, he was declared officially discharged from the hospital, since which time the appellant has not been subjected to confinement. The appellant found employment at various places and on July 10, 1945, filed an application in the district court for re-examination into his mental condition. On February 6, 1946, the appellant again petitioned the court for a re-examination to determine his sanity in accordance with the statutory provisions. A hearing was held and on March 13, 1946, the district court entered an order directing that all proceedings in the matter be dismissed and that said Willis Brand be discharged and that his civil rights be forthwith restored.

On the 21st day of January, 1946, in order to collect the moneys due the appellant from the United States government, Flossie Brand, the wife of appellant, was appointed his guardian by the county court of Milwaukee county. The guardianship remained in existence and Flossie Brand continued to act as guardian of the estate of the appellant until the 18th day of March, 1946, when she was discharged.

On June 11, 1946, appellant filed a petition asking the court to vacate the order of insanity entered on December 24, 1941, on the ground of newly discovered evidence and errors committed upon the hearing and for a new trial. This petition came on for hearing before Judge NEELEN on September 11, 1946. At the close of the hearing on that day, the court denied appellant's motion as appears from the minutes of the trial. In denying the motion, the court said:

"The procedure in this case was no different from what has been used in any other alleged insanity hearing by either the county court or district court in Milwaukee county, that this defendant was present in person at the time of the preliminary hearing. He was present also by his counsel and an attorney who was appointed by the court as guardian ad litem at the preliminary hearing. At the time of the preliminary hearing, the alleged incompetent was informed that the doctors would be appointed to examine him, and at that time there was no demand made by either the attorney or his client for a jury trial, at which time the report of the doctors was made. . . . This man was committed under chapter 51 of the statutes, which requires that the physicians make a written report to the court, and upon receipt of the physicians' report, the court will make such further investigation as may seem to him necessary and proper, and if he is satisfied from a personal observation that the alleged insane or senile person is insane or senile, he may order him to be committed to a hospital or asylum for the insane."

The appellant appeals from the order of December 24, 1941, and also from the order of September 11, 1946. It is stated in the brief that he also appeals from the order of January 9, 1942, but the record shows that no such appeal was taken. During the consideration of this case the question arose whether orders made pursuant to ch. 51, Stats., are appealable. Counsel were asked to file additional briefs upon this question. Counsel for the petitioner .responded, and the district attorney concurred by letter in the views of the appellant.

Sec. 51.01 (1), Stats., provides:

"Whenever any person within this state shall be believed to be insane or senile, application may be made in the manner prescribed in subsection (2) [name of the persons qualified to make the application] to the judge of the county court or of a district court which is a court of record, or in the absence or disability of such judge to the judge of any court of record acting in his place. . . ."

Throughout ch. 51, Stats., all provisions relating to the procedure are applicable to the judge only.

Sec. 51.05 (1), Stats., provides:

"If the judge or a jury find that the person thus alleged to be insane is a fit subject to be sent to a hospital or asylum for the insane, the judge shall order him to be committed as hereinafter provided."

Sec. 260.03, Stats., is as follows:

"An action is an ordinary court proceeding by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Every other remedy is a special proceeding."

Proceedings under ch. 51, Stats., are not actions. Such proceedings are inquests to determine the sanity of the person about whom the inquiry is made and are therefore special proceedings.

Sec. 270.53, Stats., is as follows:

"(1) A judgment is the final determination of the rights of the parties in the action.

"(2) Every direction of a court or judge made or entered in writing and not included in a judgment is denominated an order."

The proceedings under ch. 51, Stats., are before the judge. Proceedings under that chapter being special and not actions, determinations made by the judge are orders and not judgments.

We are asked to disregard the distinction between the terms "judge" and "court" because in some instances they have been used interchangeably. Not so in the statutes relating to procedure. Counsel argue that the appeal in this action is taken under sec. 274.01 (1), Stats., which provides:

"Except as otherwise specially provided, the time within which a writ of error may be issued or an appeal taken to obtain a review by the supreme court of any judgment or order in any civil action or special proceeding in a court of record is limited to six months," etc.

The argument is that this section authorizes appeals from orders. Sec. 274.33, Stats., relating to appealable orders, provides:

"The following orders when made by the court may be appealed to the supreme court:"

Certainly the legislature would not have observed carefully the distinction between these terms and carefully defined them if they were to be used interchangeably. The fact that many lay people and even some members of the legal profession use the term "judge" when referring to a court and the word "court" is used to refer to a judge is immaterial. The legislature having carefully preserved the distinction it is not the function of this court to amend or change the statute.

It therefore appears that no appeal lies from an order made by a judge in a special proceeding under ch. 51, Stats. The reason for the distinction is plain. Under the constitution there are three separate and distinct branches of jurisdiction: (1) Appellate jurisdiction; (2) concerning control over inferior courts; (3) the original jurisdiction to be exercised by certain writs.

It has been held that appellate jurisdiction under these provisions extends only to the revision of the decisions of inferior courts. State v. Brownell, 80 Wis. 563, 50 N.W. 413;Hubbell v. McCourt, 44 Wis. 584. See also Whereatt v.Ellis, 68 Wis. 61, 30 N.W. 520, 31 N.W. 762.

It has been held over and over again that the right of appeal is statutory and does not exist except where expressly given and cannot be extended to cases not within the statute.Western Union R. Co. v. Dickson (1872), 30 Wis. 389;Witzko v. Koenig, 224 Wis. 674, 272 N.W. 864.

The orders appealed from are not appealable and the appeals confer no jurisdiction upon this court. Gilbert v. Hoard,201 Wis. 572, 230 N.W. 720.

In the case of In re Hogan, 232 Wis. 521, 287 N.W. 725, the distinction between "judge" and "court" was overlooked, and the case was treated in the trial court and in this court as if it were a trial before the court. That was a proceeding under sec. 51.11, Stats. 1933. This section provided:

". . . Any person adjudged insane . . . may . . . have a retrial or re-examination of the question whether such person is sane or insane before the judge of any court of record of the county in which such person resides. . . ."

In the case of In re Ziegler, 245 Wis. 453,15 N.W.2d 34, the statement is made arguendo in a habeas corpus case that error could only be reviewed by writ of error or appeal. So far as these cases are in conflict with the determination in this case they are overruled. The precise question involved in this case was not raised in either case.

By the Court. — The appeals are dismissed.