Opinion
April 30, 1962 —
June 5, 1962.
APPEAL from an order of the county court of Chippewa County: ORRIN H. LAURABEE, Judge. Affirmed.
For the appellants there was a brief by Wiley Devine of Chippewa Falls, and oral argument by Thomas W. Devine.
For the respondents there was a brief by Ingolf E. Rasmus of Chippewa Falls, for Annie and Leo Todd; by Frank E. Huettner of Cadott, guardian ad litem for Mary and Frank Lee Todd, attorneys, and by James B. Halferty of Chippewa Falls of counsel, and oral argument by Mr. Halferty.
This is a proceeding by the appellants, Dorothy Mills Todd and Noel Bergeron, guardian ad litem for Kenneth Lee Todd and Leeford Todd, minors, to secure an enlargement of time to serve a proposed bill of exceptions. An order was entered by the county court denying the extension of time requested by the appellants. This is an appeal from that order.
The proceeding involved on this appeal grew out of an order determining heirship entered on January 30, 1961, by the county court during the probate of the estate of Beauford Todd, deceased. A copy of such order and notice of its entry was served on Dorothy Mills Todd and Noel Bergeron, as guardian ad litem, on February 8, 1961. They decided to appeal the order. Their notice of appeal, directed to Ingolf E. Rasmus, attorney for Anna and Leo Todd, and to Frank E. Huettner, guardian ad litem for Mary and Frank Todd, was dated March 30, 1961. Mr. Devine, the attorney for Dorothy Mills Todd, received typed copies of the transcript on April 25, 1961. Mr. Devine sent the original to the Wisconsin supreme court. It was filed here on April 29, 1961. He then took one of the copies to Attorney James B. Halferty, an associate of Mr. Rasmus. Toward the end of June, 1961, Mr. Devine went to see Mr. Halferty about settling a bill of exceptions. Mr. Halferty informed Mr. Devine that the statutory time allowed for settling the bill had passed.
On June 30, 1961, Mr. Devine, on behalf of the appellants, obtained an order to show cause, under sec. 269.45 (2), Stats., why the time for serving the proposed bill of exceptions should not be extended. Mr. Devine, in his affidavit in support of the motion, stated that:
"Upon delivery of the transcript of testimony to Mr. Halferty, this affiant believed that the parties would get together after they had had an opportunity to thoroughly study the transcript, and that we would enter into a stipulation regarding any changes therein and that this matter would then constitute the record for appeal; that thereafter on several occasions, this affiant and Mr. Halferty discussed in passing the opportunity to get together and settle the bill of exceptions; that in view of this agreement, this affiant felt that it was not necessary to follow the formal procedures for settling a bill of exceptions; that shortly after the first of May, 1961, this affiant became involved in the legal problems of obtaining approval from the state department of securities, in issuing debentures for a corporate client, and of negotiating a contract and settling a strike for a corporate client; that because of this work, this affiant was unable to make arrangements to get together with Mr. Halferty and stipulate as to the record on this appeal."
Mr. Halferty, in his counteraffidavit, stated that the copy of the transcript delivered to him by Mr. Devine was deficient in several respects and added:
"Your affiant did not at that time, or at any other time, agree or promise to stipulate to a settlement of the bill of exceptions and that your affiant has at no time stated that he would extend the time to settle the bill of exceptions, nor has he been requested to so agree to stipulate by Attorney Devine or anyone in Attorney Devine's office."
Mr. Huettner, guardian ad litem for Mary and Frank, stated in an affidavit that he was served with a notice of appeal, but that:
"No other papers have ever been served upon this affiant prior to June 30, 1961, at which time the appellants' order to show cause and affidavits were served upon this affiant; that this affiant has never received a copy of the trial transcript or notice of any proposed bill of exceptions; that this affiant has never received any communication from the attorneys for the appellants concerning settlement of any bill of exceptions."
After hearing on the order to show cause, the trial court determined that:
"Counsel for the appellant had reasonable grounds on which to believe that an agreement for an extension of time of the settlement of a bill of exceptions had been reached with James Halferty; . . . that appellant failed to serve the notice paper upon Frank Huettner, guardian ad litem for Mary Ann Todd and Frank Lee Todd, minor children of the deceased; and that such failure to serve said papers on the said Frank Huettner as an adverse party does not have justifiable excuse so the order prayed for is denied."
The question presented on this appeal is whether the trial court, after having made a finding that appellants' counsel "had reasonable grounds" to believe he had a stipulation on the subject, abused its discretion in denying a motion under sec. 269.45 (2), Stats., for an enlargement of time to serve a proposed bill of exceptions. The justices are equally divided on this question and, accordingly, the order of the trial court is affirmed without further opinion. Brown Deer v. Milwaukee, ante, p. 206, 217, 114 N.W.2d 493; Hagenah v. Milwaukee E.R. L. Co. (1908), 136 Wis. 300, 116 N.W. 843; Jacobs v. Queen Ins. Co. (1905), 123 Wis. 608, 612, 101 N.W. 1090.
Order affirmed.
The following opinion was filed October 2, 1962:
On this motion counsel for appellants contends that the matter should be reheard partly for the reason that a new and additional justice has come on the bench since the original decision per curiam by an evenly divided court affirming the lower court's order.
It should be stated for the guidance of counsel that it is an unwritten rule in this court that where a justice has not been on the court and for that reason could not and has not participated in the original determination by this court, such justice will not participate in deciding a later motion for rehearing on that same cause. There is nothing in the statutes or in the previous decisions of this court to take away his power to sit on such a motion, since such is a new matter independent of the original decision, but because it is deemed better policy to refrain from participating in ruling on the motion when he was not part of the original decision, this unwritten rule has been adopted and followed here.
On the merits we see no reason to change our original mandate or opinion.
The motion for rehearing is denied, with $25 costs.