Opinion
June 8, 1948. —
July 1, 1948.
MOTION made in this court for leave to perfect an appeal. Motion granted.
Philip H. Porter of Madison, and Daniel H. Grady of Portage, for the appellant.
Earl J. Cooper and R. W. Peterson, both of Madison, and Cornelius T. Young of Milwaukee, for the respondent.
An order was entered in the circuit court for Dane county affirming a decision and order of the Public Service Commission of Wisconsin, on April 13, 1948. Notice of entry thereof was served on April 14, 1948. Within thirty days thereafter and on the 27th day of April, 1948, the appellant served a notice of appeal in due form, but no undertaking for costs or deposit of money in lieu thereof was made nor was there a waiver thereof. Six days after the expiration of the time within which an appeal may be taken from the order the appellant discovered the error and thereupon deposited $250 with the clerk of the circuit court for Dane county on May 21, 1948. Notice thereof was served upon the respondent and on May 24th the notice was duly certified to this court by the clerk of the circuit court. Upon the application of the appellant an order to show cause was issued returnable on the 8th day of June, 1948, at ten o'clock in the forenoon, requiring the respondent to show cause why the cash deposit of $250 made with the clerk of the circuit court for Dane county on May 21, 1948, in lieu of undertaking for costs should not be approved as of that date in order to perfect the appeal, and the notices thereof transmitted by supplementary return of the clerk of the circuit court made a part of the record herein, and the appeal be perfected. The matter came on for hearing at the time designated and briefs were filed on behalf of the parties. From the affidavits filed on behalf of the appellant it appears that the duty of preparing the necessary appeal papers was committed to John T. Porter of the firm of Porter Porter, who inquired of his senior, Philip H. Porter, whether it was necessary to file an undertaking for costs. John T. Porter was then advised by Philip H. Porter that the appeal being one in which the Public Service Commission of Wisconsin, an agency of the state of Wisconsin, was respondent, and involving the validity of an order of said commission, and under the practice no costs being assessed in such cases regardless of the outcome of the appeal, no undertaking for costs was required; that such advice by Philip H. Porter was erroneous and given under misapprehension and mistake of the requirements of the law. Accordingly no undertaking was filed. That after the notice of appeal had been served upon the respondent and interveners, and filed with the clerk of the circuit court, said clerk transmitted the record to the supreme court and it was assumed by counsel for plaintiff that the appeal had been perfected and all requirements therefor had been duly satisfied. On the 21st day of May, 1948, counsel discovered his mistake and immediately deposited with the circuit court the sum of $250 in cash in lieu of the undertaking for costs, and thereupon served notice thereof upon respondent and all interveners as already stated.
While Rule 1 (11) of the Rules of Practice requires that bond or undertaking on appeal be returned to this court as part of the record there is no such requirement as to the deposit of cash or bonds in lieu of undertaking or bond. It was, therefore, not necessary for the clerk of the circuit court to make return to this court of the cash deposited in lieu of the undertaking.
Leave is granted on the authority of Wenzel Henoch Construction Co. v. Wauwatosa (1937), 226 Wis. 10, 16, 275 N.W. 552, and the cases therein cited. As was said in that case, referring to some prior decisions:
"If these decisions imply that this court may not under sec. 274.32, Stats., permit an appeal to be `perfected' after the time for appeal has expired when the only act wanting in that respect is the service of a copy of the appeal bond on the respondent, they are erroneous in that respect, and so far as they seem to so imply they are overruled."
Counsel for defendant endeavored to distinguish the Wenzel Henoch Construction Co. v. Wauwatosa Case, supra, on the ground that in that case there were irregularities in papers and in the service thereof, therefore relief could be granted, but the court cannot give relief in case of omissions or fill a vacuum created by appellant. This contention cannot be sustained. The court can certainly do it if it has jurisdiction. When a proper notice of appeal is served and filed within the statutory time the court acquires jurisdiction. Other necessary steps are supplementary thereto. The question then is, Are there sufficient grounds for excusing the irregularity. complained of? The court will not extend the time or allow perfection of the record in every case. Pick v. Pick (1944), 245 Wis. 496, 15 N.W.2d 807. It is considered that the excuse in this case is sufficient, no inconvenience or damage having resulted to the opposite party and there being every evidence of good faith to take an appeal. Therefore,
It is ordered that the request of the appellant for leave to file the deposit and notice thereof as of May 21, 1948, be and the same is hereby granted.
It is further ordered that the papers certified to this court by supplementary return be, and they are hereby made, a part of the records in this court, and the appeal is deemed perfected as of May 21, 1948, the plaintiff to pay ten dollars costs of motion forthwith.