Summary
In Russell v. Johnson (1961), 14 Wis.2d 406, 111 N.W.2d 193, in an appeal from a circuit court order dismissing a complaint without prejudice but with costs, this court held the order was appealable because it prevented a judgment from being taken although the order itself was not a final judgment.
Summary of this case from Milwaukee v. CohenOpinion
September 8, 1961 —
October 3, 1961.
APPEAL from orders of the circuit court for Oneida county: FRANCIS X. SWIETLIK, Reserve Circuit Judge, Presiding. One order modified and affirmed; appeal from two others dismissed.
For the appellant there was a brief by Conway Conway of Baraboo, and oral argument by Vaughn S. Conway and Kenneth H. Conway, Jr.
For the respondents there was a brief by Schmitt, Wurster Tinglum of Merrill, and O'Melia Kaye of Rhinelander, and oral argument by John F. O'Melia and Leonard F. Schmitt.
Plaintiff's action for damages was commenced October 20, 1959, and issue was promptly joined. Plaintiff filed an affidavit of prejudice February 4, 1960, and on April 13th, the Chief Justice designated Judge SWIETLIK to hear the case. On July 7, 1960, plaintiff obtained an order requiring defendants to show cause why the jury commissioners and those named on the jury list should not be dismissed. At the hearing defendants conceded that in some respects the statutes relating to appointment of commissioners and preparation of a jury list had not been complied with, and the court ruled accordingly.
At a conference following the hearing, the case was set for trial October 3d. Plaintiff's counsel indicated that he might make a motion for a change of venue, and the court advised him to make it timely, prior to the date set for trial.
The jury commissioners were reappointed, this time in compliance with the statutes, and on August 15th they prepared a new jury list containing 395 names. On September 27th one of plaintiff's counsel examined the list. On October 3d, the date set for trial, he filed an affidavit and orally challenged the array of jurors and requested a change in the place of trial.
Plaintiff contended that although the commissioners were required to apportion the names "as nearly as practicable among towns, villages, and wards of cities thereof in proportion to population according to the last national census," they had failed to do so. It appeared that the commissioners had apportioned the names in proportion to the number of names on the registry lists of the wards and towns where voters are required to register and the number of names on the poll lists for the preceding election in the other towns. The jury list as prepared contained 188 names of persons living in Rhinelander, but if the number were apportioned strictly according to population 160 would have been named from that city.
Defendants are doctors residing in Rhinelander. Counsel's affidavit described various business or personal relationships between a number of persons on the jury list and other persons or corporations in Rhinelander, and, in turn, various relationships between the latter and defendants or their counsel.
The court decided that the use of the registry and poll lists was a substantial compliance with the statute, and that the existence of the relationships described did not show cause for removal to another county. Plaintiff's counsel then stated that plaintiff would appeal from the decision and asked for a stay. This was denied.
Plaintiff's counsel then informed the court that they were not ready for trial; that they had expected that if the court denied the challenge and request for change of venue, plaintiff could appeal. Defendants then moved for dismissal upon the merits and plaintiff for dismissal without prejudice.
The court entered an order denying defendants' motion and granting plaintiff's, providing, however, that as a condition of commencing a new action plaintiff must pay $923.10. Five hundred dollars of this sum was to be distributed to counsel for defendants, $91.60 to the state to reimburse it for Judge SWIETLIK'S per diem and expenses for attendance on October 3d, and $331.50 to the county to reimburse it for the expense of the attendance of the jury panel, bailiff, sheriff, and certain witnesses. It was further ordered that if plaintiff should not bring a new action, defendants were to recover statutory costs and disbursements but not attorney's fees.
Plaintiff appealed from the order dismissing the complaint without prejudice, from the order denying the challenge to the array, and from the order denying the request for a change of the place of trial. Defendants requested review of the part of the order denying their motion for dismissal upon the merits.
Further facts will be referred to in the opinion.
1. Appealability of order dismissing complaint. Respondents previously moved to dismiss this appeal on the ground that the order dismissing the complaint without prejudice, but with conditions for recommencement, is not an appealable order. We denied the motion.
Sec. 274.33, Stats., provides:
"The following orders when made by the court may be appealed to the supreme court:
"(1) An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken."
All three of these conditions must exist for an order to be appealable under this section.
Schlesinger v. Schroeder (1933), 210 Wis. 403, 410, 245 N.W. 666.
This order affects a substantial right. It prevents plaintiff from pursuing his cause of action unless he pays more than $900 to the clerk of circuit court.
An order dismissing an action determines the action within the meaning of sec. 274.33(1), Stats. In Willing v. Porter the trial court denied plaintiff's request for a default judgment. The order was held not appealable because the order contemplated further proceedings in the same action and therefore did not determine the action. In the case now at bar, on the other hand, the order fully determined the action, although it left open the adjudication of the alleged cause of action. Having terminated the action without judgment, it is clear that the order prevents a judgment from which an appeal might be taken. It is appealable.
State v. Eigel (1933), 210 Wis. 275, 246 N.W. 417, and Prochnow v. Northwestern Iron Co. (1914), 156 Wis. 408, 145 N.W. 1098, 145 N.W. 1104.
(1954), 266 Wis. 428, 63 N.W.2d 729.
The appealability of an order or judgment is generally determined by the finality such determination has on the action at bar. In United States v. Wallace Tiernan Co. (1949), 336 U.S. 793, 69 Sup. Ct. 824, 93 L.Ed. 1042, for example, judgment was entered dismissing the action without prejudice. The United States supreme court held that the fact that the dismissal was without prejudice to filing another suit did not make the cause unappealable, for denial of relief and dismissal of the case had ended this suit.
2. Review of other orders. Plaintiff has appealed from and asks this court to review the orders of the trial court denying his motion for change of venue and his challenge to the array.
An order which denies a motion for change of venue is not an appealable order. An order which denies a challenge to the array is not appealable. Such order does not determine the action and does not prevent a judgment from which an appeal might be taken. Sec. 274.33(1), Stats.
Trossen v. Burckhardt (1960), 9 Wis.2d 304, 100 N.W.2d 918.
Plaintiff contends, however, that these orders are reviewable under sec. 274.34, Stats., which provides:
"Upon an appeal from a judgment, and upon a writ of error, the supreme court may review any intermediate order which involves the merits and necessarily affects the judgment, appearing upon the record."
This statute allows review of intermediate orders only upon an appeal from a judgment. On an appeal from an order, the supreme court lacks the power to review a prior order. The dismissal without prejudice, which is the subject of the present appeal, does not constitute a judgment. A judgment is the final determination of the rights of the parties in the action.
Pick Industries, Inc., v. Gebhard-Berghammer, Inc. (1952), 262 Wis. 498, 56 N.W.2d 97, 57 N.W.2d 519.
Sec. 270.53, Stats.; State v. Eigel, supra, footnote 2, page 277. To distinguish a judgment from an order, the test is not the designation applied by the court, but whether the decision is a final determination of the rights of the parties; if it is, it is a judgment, otherwise it is an order. Werner v. Riemer (1949), 255 Wis. 386, 402, 39 N.W.2d 457; State v. Donohue (1960), 11 Wis.2d 517, 520, 105 N.W.2d 844.
Plaintiff contends that the action of the trial court did constitute a final determination of certain "rights" of the plaintiff, i.e., to a jury impaneled in accordance with law, in a county where such a jury can be obtained free from prejudice, and to recommence the action without being obliged to comply with the conditions set by the court. These "rights," though important and substantial, did not go to the merits of the alleged cause of action nor of any affirmative defense. Therefore the order of the trial court was not a judgment, and we lack the power to review the intermediate orders.
See Kling v. Sommers (1948), 252 Wis. 217, 220, 31 N.W.2d 206.
It follows that we express no opinion on the merits of plaintiff's challenge to the array or his request for change in place of trial. Whether or not the circuit court was correct in denying plaintiff's challenge, we point out that jury commissioners can avoid the question raised by plaintiff if they are careful to determine from census figures the number of persons to be placed on the list from each town, village, and city ward as required (as nearly as practicable) by sec. 255.04(2)(a), Stats.
3. Conditions for the recommencement of the action. Plaintiff contends that the court erred in imposing upon plaintiff the obligation to reimburse the defendants, the state of Wisconsin, and Oneida county for the expenses incurred in preparing for trial October 3d, as a condition for the recommencement of the action.
A plaintiff does not have an absolute right to discontinue his action. Leave to discontinue may be denied in the discretion of the court if the rights of defendants, third parties, or the public will be substantially prejudiced by discontinuance. The trial court has the authority to compel a plaintiff to proceed with trial or take a dismissal upon the merits. Under the circumstances of this case, it would not have been an abuse of discretion for the trial court to have dismissed the action upon the merits.
Burling v. Burling (1957), 275 Wis. 612, 82 N.W.2d 807.
Boutin v. Andreas (1915), 161 Wis. 152, 152 N.W. 822.
Plaintiff was not personally in court nor prepared to try his case, although the trial date had been set two months in advance. At the conference of court and counsel in July, counsel for plaintiff had indicated the possibility that he would move for a change of venue and the court had directed him to make any such motion before the trial date. He had made no motion in the interim, nor given any notice of his intention to make the motions he made on October 3d. In the event of denial of the motions, the orders would not be appealable. If there were to be no trial on October 3d, the people on the jury panel might have been excused from coming to the courthouse and defendants need not have completed the preparation of their defense.
Had the court entered judgment dismissing the action on the merits, statutory costs would have been allowed as a matter of course. Even if the court had considered that plaintiff had shown cause for a continuance, plaintiff would have been required to make immediate payment of the fees of witnesses in actual attendance and reasonable attorney's fees. The statutes also authorize the court to impose conditions on a stay pending appeal from an order. In a divorce case, this court has held that a plaintiff is not entitled to an unconditional discontinuance but the court may, in its discretion, require him, as a condition of discontinuance, to pay the reasonable expenses incurred by the wife in defense of the action. None of the situations just mentioned is an exact counterpart of the situation at bar, but the statutes and decisions support by analogy the thought that terms may be imposed here.
French v. Continental Assur. Co. (1938), 227 Wis. 203, 278 N.W. 388.
Sec. 270.145(6), Stats.; Zutter v. Kral (1955), 268 Wis. 606, 68 N.W.2d 590.
Sec. 274.24, Stats.
Schulz v. Schulz (1906), 128 Wis. 28, 107 N.W. 302.
The circuit court evidently concluded that plaintiff's failure to prepare for trial in reliance upon the expectation that his motions would be granted, or that if denied he could obtain a stay pending appeal was unreasonable. Plaintiff had made no effort to avoid expense on the part of the defendants and the public which would be fruitless if the case were not tried on October 3d. The court concluded that justice required plaintiff to make good for the unnecessary expense before being permitted to commence a new action. We agree that the theory is sound.
We conclude, however, that the amounts allowed were unwarranted in certain respects. Had plaintiff made his motions in advance of the trial date, or, if he could not with due diligence have obtained the jury list before September 27th, had he advised the court and counsel of his intentions, the court would have had an opportunity to postpone the trial and obviate the attendance of jurors. The attendance of counsel for defendants and the judge would, nevertheless, have been required at the hearing on the motions. Much of defense counsel's preparation for trial prior to October 3d will still be useful in the event a new action is commenced and comes to trial. In the absence of more-palpable substantiation for a larger amount of attorney's fees than appears in the record, we deem the sum of $100 reasonable. Since Judge SWIETLIK'S per diem and expense in traveling to Rhinelander would presumably have been the same for hearing of a motion, reimbursement for those sums should not be required. We do not deem it unreasonable under the circumstances disclosed by the record to require reimbursement to the county of money which need not have been expended.
Plaintiff contends that it is contrary to public policy to allow costs except as provided by statute, and that he has a constitutional right to obtain justice freely, promptly, and without delay. The terms were not imposed, however, as a fee for the day in court to which he is entitled, but as a condition of having a second day, which is not his as a matter of right.
4. Defendants' request for review. Under the circumstances the circuit court did not abuse its discretion in denying defendants' motion to dismiss the complaint upon the merits.
By the Court. — The appeal from the orders denying the challenge to the array and plaintiff's request for change of place of trial is dismissed. The order dismissing the complaint without prejudice is modified to reduce the amount to be paid to the clerk of circuit court to the total sum of $431.50, $100 thereof to be distributed to counsel for the defendants, and $331.50 thereof to be distributed to Oneida county. As so modified, the order is affirmed.
I can find no authority for making the order appealed from and the reasons of the majority do not convince me of such power in the trial court. The order appealed from is without precedent. It grants a nonsuit and makes it a condition that suit may again be started only on the payment of $923.10, which includes reimbursement for the expense of the attendance the jury panel. Such excessive fees amount to a penalty. any event, if the suit is not again started the trial court's order provides for statutory costs and disbursements and no attorney's fees.
In any event, the costs of the attendance of the jury panel should not have been allowed by this court. In the record before us, a very serious question is raised that the panel of jurors was not properly selected. It is true the merits of the appellant's arguments cannot be determined on this appeal, but the majority has seen fit to recognize the problem and to advise the jury commissioners how to avoid the question in the future. If the jury was not properly impaneled, there is no justice in requiring the plaintiff to pay the costs of impaneling it.
I am authorized to state that Mr. Justice HALLOWS joins in this dissent.