Opinion
May 10, 1940 —
June 4, 1940.
APPEAL from an order of the municipal court of Racine county: E. R. BURGESS, Judge. Affirmed. Motion denied.
For the appellants there was a brief by E. W. Lawton of Racine, attorney, and Olin Butler of Madison of counsel, and oral argument by Mr. Lawton and by Mr. Robert M. Rieser of Madison.
For the respondent there was a brief by Charles P. Regan of Milwaukee and Gerald T. Flynn of Racine, and oral argument by Mr. Flynn.
This action was begun on September 12, 1936, by Home Owners' Loan Corporation, a corporation, plaintiff, against Tony Papara, Esther Papara, his wife, and Louise Papara, defendants, to foreclose a mortgage upon certain property situated in the county of Racine. The defendants defaulted, and on December 1, 1936, a judgment of foreclosure was entered. On motion an order dated February 26, 1938, was entered making additional parties defendants, a guardian ad litem was appointed for the infant defendants, the summons and complaint were amended accordingly, and on June 3, 1938, an amended judgment of foreclosure was duly entered.
By order dated September 24, 1938, Luigina Papara and Esther Papara were let in to answer the complaint of the plaintiff. Trial was had at the October, 1938, term of the municipal court, and on January 12, 1939, the court made a decision holding the mortgage was void for the reason that it had been forged, and directed judgment to be entered accordingly. Before judgment was entered the plaintiff moved for a new trial, which motion was granted, and on May 9, 1939, the court entered the following order:
"That the verdict rendered by the above-entitled court on the 12th day of January, 1939, be set aside and vacated and that a new trial be granted to the plaintiff in the interests of justice, and that costs be disallowed to either party."
By "verdict" the court evidently referred to the decision and direction for judgment made on January 12, 1939. There was no "verdict because there was no jury."
On the 22d day of May, 1939, the defendants moved the court to vacate the order granting a new trial made May 9, 1939. This motion was denied October 31, 1939, and on November 7, 1939, the court made an order permitting the plaintiff to amend its complaint in the following respects: (1) By inserting other allegations material to the case and, specifically, the allegations as to forgery and as to the right of subrogation and other facts necessary for the proof of the same; (2) that copies of said complaint as amended be served, etc., and on November 7, 1939, the court denied the motion of the defendants to vacate the order granting a new trial.
On the 8th day of November, 1939, the defendants, Esther Papara and Louise Papara, served what purports to be a notice of appeal from —
"(1) The neglect and refusal of said court to sign and make a formal findings of fact and conclusions of law, prepared by said defendants and filed with the court, as directed in said court's written decision, findings and judgment in favor of said defendants, dated and filed January 12, 1939," etc.
"(2) The decision, findings and order of said court, made and filed May 16, 1939, on plaintiff's motion filed February 3, 1939, for a new trial. . . .
"(3) The decision, findings and order of said court made, and filed November 7, 1939, on defendants' motion for a rehearing and for an order to set aside and vacate the court's order granting plaintiff a new trial. . . .
"(4) The order of said court made November 7, 1939, granting plaintiff the right and leave to amend again its amended complaint."
Pursuant to the appeal the cause was removed to this court. In this court the plaintiff moved on May 2, 1940, to dismiss the appeal of the defendants. The motion to dismiss the appeal having come on for a hearing in this court, the parties stipulated in open court that this court might take up the matter of the right of the plaintiff to subrogation and determine the appeal upon the merits if it was of the view that the appeal should not be dismissed.
The papers in this case disclose a great deal of confusion as to the rights of parties to actions to appeal. However, out of the mass of allegations made in the notice of appeal served and filed by the appealing defendants, it appears that there is a good appeal from the order dated May 9, 1939, an appeal having been taken within six months and the time not having been limited by service of a notice of entry of order as provided in sec. 274.04, Stats. 1939. It is apparent that this court cannot, upon the stipulation of the parties, consider the right of the plaintiff to subrogation. That issue has never been tried by the municipal court of Racine county. This court is a court of appellate jurisdiction, and with respect to the plaintiff's rights in regard to subrogation, nothing is brought before this court by the appeal. Before this court can review that question there must be a trial in the municipal court and a determination by that court. The attempt to appeal from the judgment filed January 12, 1939, is of no effect for the reason that, in the first place, no judgment was entered, and if a judgment had been entered on that date, the time for appeal had long since expired. The statutes nowhere authorize appeals to this court from decisions and findings, only from orders and judgments.
With respect to the appeal from the order of the trial court granting a new trial in the interest of justice, it is only necessary to say that the order appealed from is a highly discretionary one. An attempt is made here to establish abuse of discretion on the ground that the trial court granted the motion for the reason "that a new trial may disclose the person or persons who, committed the forgery." While it is true that the trial court did in an opinion dated February 24, 1939, say that —
"In the interest of justice, the court is of the opinion that the discovery of who committed the fraud may be very important to the end that justice may prevail."
The court also said:
"The plaintiff parted with the money to pay off the mortgage indebtedness held by the Home Mutual Building Loan Association in good faith and with the understanding that it was to be secured by a mortgage on the premises. Somewhere during the process of having the note and mortgage executed by the owners of the property a fraud was committed by someone.
"It is the opinion of the court that a new trial be and the same is hereby granted upon the motion of the plaintiff without costs to either party."
By the order dated February 12, 1939, the court had denied the right of plaintiff to subrogation, and apparently became convinced that plaintiff was entitled to a new trial upon that issue, and it granted a new trial for that reason and made an order permitting plaintiff to amend its complaint accordingly. We see no, ground for holding that the trial court abused its discretion.
By the Court. — The motion to dismiss the appeal is denied; the order granting a new trial is affirmed, and the appeals or attempted appeals from all other decisions, orders, and judgments are dismissed. Plaintiff to have its costs in this court.