Opinion
November 18, 1965.
APPEAL from a judgment of the circuit court for Milwaukee county: EDWIN M. WILKIE, Circuit Judge of the Ninth circuit, Presiding. Reversed.
For the appellant there was a brief by Clyde E. Sheets and Robert M. Siegman, both of Milwaukee.
No brief or appearance for the respondent.
William D. Roth brought a quo warranto action against Mark W. Ryan, alleging that Ryan was unlawfully holding the elected office of alderman of the fifth ward of Milwaukee. Roth brought the action in the name of the state as a private person, pursuant to sec. 294.04 (2), Stats., based on the allegation that Ryan was not a fifth-ward resident when elected to the office. The jury found that Ryan was not a resident of the fifth ward, and the court entered judgment on the verdict ousting Ryan from his office and awarding Roth $626.05 in costs.
"WHEN ACTION MAY BE BROUGHT. (1) . . .
(2) Such action may be brought in the name of the state by a private person on his own complaint when the attorney-general refuses to act or when the office usurped pertains to a county, town, city, village or school district."
Ryan's testimony indicates that he lived in his father-in-law's duplex at 2560 North Thirty-fifth street from 1954 to 1963, within the then existing fifth ward. The Milwaukee common council passed an ordinance on June 27, 1962, changing the ward lines. Appellant states that another ordinance was passed in November or December, 1963, which returned to the old boundaries. The mayor's veto of this second ordinance was upheld in December, 1963. Thirty-fifth street defined the new ward line, and Ryan's residence on the east side of Thirty-fifth street no longer was in the new fifth ward.
In February, 1964, Ryan rented an apartment at 3633 West Meinecke, which was within the new fifth ward. There is a conflict as to the date when Ryan and his family began living at the West Meinecke apartment. On one occasion, Ryan testified that his family began living there seven nights a week about June 3d. In other testimony, Ryan stated that the family returned to sleep at the Thirty-fifth street address in May during illness of the father-in-law. Mrs. Ryan testified that the whole family slept at the West Meinecke address starting about April 2, 1964. The Ryans purchased a house at 3304 North Forty-sixth street in the new fifth ward and moved in on September 11, 1964. Negotiations, according to Mrs. Ryan, began in July of 1964.
The dates pertinent to this dispute are:
April 7, 1964 Spring election for alderman April 14, 1964 Official oath administered to Ryan April 21, 1964 Ryan took officeRyan was elected on April 7, 1964, for a four-year term commencing April 21, 1964.
Roth took out nomination papers for the office of alderman of the new fifth ward, but failed to obtain the requisite number of signatures, and was not on the ballot with Ryan.
The trial court instructed the jury, in part, with reference to the residence issue that:
". . . it was necessary, in order for Mark Ryan to establish a new place of residence or domicile from his place of residence or domicile on 35th Street outside the boundaries of the 5th Ward, to have the intention of abandoning his residence on 35th Street and making his residence for an indefinite time within the boundaries of the 5th Ward and also to actually, through his concurrent acts and deeds, abandon the 35th Street home and establish a fixed place of residence within the 5th Ward."
The court submitted a special verdict to the jury which asked whether Ryan made his residence within the (new) fifth ward on April 7, 1964, and on April 21, 1964. The jury answered, "No," to both questions.
Ryan, in his brief, states that after he was ousted from office by the judgment of the court, he was appointed by the common council to fill the vacancy until an alderman could be elected in the spring of 1966.
The respondent (plaintiff below) filed no brief in this court. Therefore, the appeal is not decided on the merits, but the judgment is reversed pursuant to sec. (Rule) 251.57, Stats, which provides:
"When a cause is submitted, or presented by counsel for appellant or plaintiff in error, but not by the opposing party, the judgment or order appealed from may be reversed as of course, without argument."
For other decisions which have reversed as of course under this rule, see Cihlar v. Harvey (1965), 27 Wis.2d 269, 133 N.W.2d 815; State v. Seymour (1964), 24 Wis.2d 258, 262, 128 N.W.2d 680; Fuller v. Fiedler (1963), 19 Wis.2d 422, 426, 120 N.W.2d 700; Estate of Ohnstad (1962), 15 Wis.2d 361, 112 N.W.2d 917; State ex rel. Gresholdt v. Board of Appeals (1961), 12 Wis.2d 516, 107 N.W.2d 484.
By the Court. — Judgment reversed, with directions to dismiss the complaint.
WILKIE, J., took no part.