DOUGHBOY INDUSTRIES, INC. v. HIPKE, 26 Wis.2d 578 (1965)

133 N.W.2d 290

DOUGHBOY INDUSTRIES, INC., Appellant, v. HIPKE, and another, Respondents.

Supreme Court of Wisconsin.February 3, 1965 —
March 2, 1965.

APPEAL from an order of the circuit court for Calumet county: ARNOLD J. CANE, Circuit Judge. Reversed.

Petition for satisfaction of a judgment.

Doughboy Industries, Inc., is a Wisconsin corporation with its principal place of business in New Richmond. On March 17, 1959, Doughboy obtained a judgment in the circuit court for Calumet county against Howard G. Hipke in the amount of $3,975.55. On September 24, 1959, Hipke was adjudicated a bankrupt. He received a discharge from provable debts January 13, 1960. The schedule of unsecured creditors filed in the bankruptcy proceeding listed Doughboy Industries, Inc., by name but did not list any address or place of residence for it.

Hipke petitioned the circuit court pursuant to sec. 270.91 (2), Stats., for an order declaring Doughboy’s and other

Page 579

judgments satisfied by reason of the discharge in bankruptcy. Such order was entered January 8, 1964. A letter from Doughboy’s counsel, dated January 8th, pointing out that its address had not been listed and submitting affidavits to show that it had not received notice of the bankruptcy proceeding, did not reach the court until after entry of the order.

Doughboy moved for review and vacation of the order, under sec. 269.46 (1), Stats., and the court suspended the order, pending hearing, pursuant to sec. 269.28. On July 8, 1964, the court filed a memorandum which included an order that the January 8th order should stand.

On September 23, 1964, Doughboy served a notice of appeal from the January 8th order “as affirmed by” the order filed July 8th, insofar as it directed satisfaction of the Doughboy judgment. The notice named Marie J. Hipke as well as Howard G. Hipke.

For the appellant there was a brief by Doar Knowles, and oral argument by James A. Drill, all of New Richmond.

No brief or appearance for the respondents.

FAIRCHILD, J.

There was a timely appeal from the order filed July 8th, although not from the order of January 8th. Respondents filed no brief and did not appear when the case was called for argument. We have decided to exercise our discretionary power to reverse the order filed July 8th under sec. 251.57, Stats.

By the Court. — The order filed July 8, 1964, is reversed; the cause is remanded with directions to vacate that part of the order dated and filed January 8, 1964, which declares satisfied the judgment in favor of Doughboy Industries, Inc.

Page 580