Opinion
No. 301.
Argued May 8, 1968. —
Decided June 4, 1968.
APPEAL from an order of the circuit court for Milwaukee county: MARVIN C. HOLZ, Circuit Judge. Reversed.
For the appellant the cause was argued by E. Gordon Young, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and Richard E. Barrett, assistant attorney general.
No brief or appearance for respondent.
In this proceeding the respondent, Alexander S. Herczeg, seeks to restrain the appellant, the administrator of the division of motor vehicles, Wisconsin Department of Transportation, from suspending the registration of his motor vehicle.
Herczeg owns a 1963 Chevrolet automobile. This vehicle, driven at the time by Herczeg's son, was involved in a collision. The accident was reported to the administrator who, in turn, notified Great Lakes Insurance Corporation, the named insurer of the Herczeg vehicle. Great Lakes did not file a report with the administrator admitting public liability insurance coverage at the time of the collision.
The administrator of the division of motor vehicles, Wisconsin Department of Transportation, notified the plaintiff-respondent of the department's intention to suspend the registration of his motor vehicle. This notification was sent pursuant to sec. 344.04(2), Stats.
"Upon receiving information, other than of a judgment for damages in a court of this state, that would be cause for revocation or suspension of registration, the commissioner shall notify the registrant of his intention to revoke or suspend such registration. The registrant may thereupon petition any court of record in his county for an order enjoining the commissioner's contemplated action, whereupon the judge of such court shall grant an order restraining the commissioner in the matter until the petition is finally determined by the court. If such petition and order are served upon the commissioner within 10 days after the date of the commissioner's notice or in any event before the commissioner has revoked or suspended the registration, the commissioner shall await the final determination of the court. The commissioner shall be given notice of the hearing. Upon a showing that it would result in undue hardship upon the petitioner to have any such registration revoked or suspended, the court shall issue an order restraining the commissioner from revoking or suspending the registration."
Under this same section the respondent petitioned the circuit court for Milwaukee county for an order to show cause why the appellant should not be restrained from revoking or suspending the respondent's registration. The petition alleged that the respondent's insurance company had failed, refused and neglected to file an appropriate form with the administrator and that the respondent could prove that his vehicle and his son were properly insured at the time of the collision.
The appellant made a special appearance and entered a demurrer to the petition contending, inter alia, that respondent could not avail himself of the provisions of sec. 344.04(2), Stats., as his petition involved a defense to the suspension of registration rather than a claim of undue hardship. The trial court overruled the demurrer and temporarily restrained the administrator from suspending the vehicle registration.
From this order the appellant appeals on the ground stated above.
The respondent has not appeared nor filed a brief in this appeal. The court may, therefore, reverse the order upon the procedural ground pursuant to sec. (Rule) 251.57, Stats.
The appellant has requested the court to consider the case upon its merits and reverse the order. We are not persuaded the request should be granted. It appears that there may be meritorious arguments that sec. 344.04(2), Stats., is not limited solely to cases where undue hardship is alleged. In any event, we are of the opinion that the issues should be briefed and argued on both sides before the court restricts the section as contended by the administrator.
We therefore reverse under sec. (Rule) 251.57, Stats., and not upon the merits. By the Court. — Order overruling the demurrer and restraining the administrator of the division of motor vehicles is reversed with directions to enter an order sustaining the demurrer, quashing the restraining order and to enter judgment dismissing the petition.