Summary
In Hurst v. Hungerford (1963), 19 Wis.2d 537, 120 N.W.2d 727, this court reversed an order under sec. 270.49 (1), Stats., granting a new trial because the order was not entered within the sixty-day period following the verdict.
Summary of this case from Schramski v. HansonOpinion
March 7, 1963 —
April 2, 1963.
APPEAL from an order of the circuit court for Outagamie county: ANDREW W. PARNELL, Circuit Judge. Reversed.
For the appellant there was a brief and oral argument by John E. Esler of Kaukauna.
For the respondents there was a brief by Holden Peckham of Sheboygan, and oral argument by Verlin H. Peckham.
Action by plaintiff Richard Hurst against defendants Milo Hungerford and Heritage Mutual Insurance Company, Hungerford's insurance carrier, to recover damages for personal injuries sustained by plaintiff while riding as a passenger in Hungerford's automobile.
The action was tried to the court and a jury. The jury returned a special verdict finding both plaintiff and Hungerford causally negligent; apportioning such negligence on the basis of 10 percent to plaintiff and 90 percent to Hungerford; and fixing plaintiff's damages in the following amounts:
(a) For personal injuries ...................... $ 200 (b) For hospital and medical expenses to date .. 646 (c) For loss of wages .......................... 650 (d) For future medical and hospital expenses, if any ..................................... 2,000 Plaintiff moved after verdict that the $200 awarded for personal injuries be increased to a fair and reasonable amount and that an order for judgment be entered on the verdict as so amended. Defendants moved for changes in answers to the negligence questions, for a change in the $2,000 award for future medical and hospital expense to a fair and reasonable amount, and, if these prior motions were denied, for judgment on the verdict as rendered.The circuit court by memorandum decision determined that the $200 awarded for personal injuries was inadequate; that $1,000 would be a reasonable sum to allow for such injuries; that the $2,000 awarded for future medical and hospital expense was excessive; and that the evidence would only sustain a maximum of $825 for such expenses. Plaintiff was granted the option of accepting judgment upon the verdict as amended to include a net reduction in damages of $375; or, upon his failure to accept such reduced damages within a ten-day period, a new trial on all issues was to be had. Plaintiff failed to accept judgment upon the verdict as amended; thus on July 17, 1962, an order was entered directing a new trial on all issues. Plaintiff has appealed from this order.
Upon oral argument plaintiff's counsel raised a point not mentioned in the briefs. This is that the order for new trial was entered more than sixty days after return of the verdict without any order having been entered extending the time within which the circuit court might decide the motions after verdict. Defendants' counsel conceded that no order had been entered extending the time for deciding these motions, and the record discloses none.
Sec. 270.49 (1), Stats. 1959, provides in part as follows:
"The trial judge may entertain a motion to be made on his minutes, to set aside a verdict and grant a new trial . . . for excessive or inadequate damages . . . but such motion must be made and heard within sixty days after the verdict is rendered, unless the court by order made before its expiration extends such time for cause. . . . Such motion, if not decided within the time allowed therefor, shall be deemed overruled."
The verdict was returned by the jury on March 22, 1962, so that the sixty-day period within which the circuit court might have entered an order for a new trial, absent any order extending time, expired on May 21, 1962. The circuit court's memorandum opinion was not rendered until June 8, 1962, and the order for new trial was not entered until July 17, 1962. Thus the circuit court's order for a new trial is void for lack of jurisdiction because not entered within the statutory period. Alberts v. Rzepiejewski (1962), 18 Wis.2d 252, 256, 257, 118 N.W.2d 172, 119 N.W.2d 441; Volland v. McGee (1941), 236 Wis. 358, 363, 294 N.W. 497; Urban v. Anderson (1940), 234 Wis. 280, 283, 284, 291 N.W. 520; and Bankers Finance Corp. v. Christensen (1923), 181 Wis. 398, 195 N.W. 319.
By the Court. — The order appealed from is reversed, and the cause remanded with directions to enter judgment upon the verdict as rendered. No costs are to be taxed on this appeal by any party thereto.
WILKIE, J., took no part.