HENRY v. BEATTIE, 40 Wis.2d 704 (1968)

162 N.W.2d 613

Supreme Court of Wisconsin.
No. 46.Argued October 31, 1968. —
Decided November 26, 1968.

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APPEAL from an order of the circuit court for Walworth county: ERNST JOHN WATTS, Circuit Judge. Dismissed.

Plaintiff Guy R. Henry, a resident of the state of Pennsylvania, brought this action for damages for personal injuries on August 15, 1967, by the service of a summons and complaint. The alleged cause of action arose out of a swimming pool accident on August 16, 1964. On September 12, 1967, defendant Beattie (hereinafter referred to as “defendant,” since the White River Corporation is not a party to this appeal) obtained an order requiring plaintiff to file security for costs, under sec. 271.28, Stats.[1] Service of the order on plaintiff was made the same day.

Pursuant to the statute and the order, the security for costs was to have been filed with the clerk of courts by October 2, 1967.

On October 4, 1967, plaintiff’s personal check for the required amount was deposited with the clerk of courts. Defendant was served with a notice of the deposit on the same day.

On October 5, 1967, defendant moved the circuit court of Walworth county for an order dismissing the plaintiff’s action for failure to file security for costs in a timely manner. The affidavit supporting the motion acknowledged the tardy deposit of the check which had occurred the previous day.

The motion for dismissal was heard and judgment of dismissal was granted on October 24, 1967, the trial

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court holding that the plaintiff had not indicated any excusable neglect for the late filing of the security.

On December 15, 1967, plaintiff obtained an order to show cause why the judgment of dismissal should not be vacated under the provisions of sec. 269.46(3), Stats.,[2]
or, in the alternative, why plaintiff should not be allowed to plead over nunc pro tunc as of August 15, 1967. The order to show cause was supported by plaintiff’s affidavit which informed the court that the plaintiff had not been informed that a security for costs had been demanded until it was too late to comply with the deadline, that plaintiff had been on a trip with his wife, that no one had been at plaintiff’s residence in Pennsylvania to open his mail, and that upon receiving a letter from his attorney reciting the demand for the security, plaintiff sent a check for the required amount within twenty-four hours.

The trial court by an order dated January 26, 1968, vacated the judgment of dismissal entered on October 24, 1967. Defendant appeals from that order.

For the defendant-appellant there was a brief b Godfrey, Godfrey Neshek of Elkhorn, and oral argument by Thomas G. Godfrey.

For the plaintiff-respondent there was a brief and oral argument by John J. Byrnes of Elkhorn.

HANLEY, J.

The principal issue on this appeal is whether the order of January 26, 1968, vacating the judgment of dismissal, is an appealable order.

We think the order is not appealable and the appeal should be dismissed.

“An order opening or vacating a judgment and permitting further proceedings is not a final order and, accordingly, not appealable under sec. 274.33(2), Stats., even

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though it affects a substantial right and is made, obviously, in an action after judgment. . . .” Buckley v. Park Building Corp. (1965), 27 Wis.2d 425, 430, 134 N.W.2d 666.

Although the only part of sec. 274.33, Stats., which was put in issue in the above-cited case was sub. (2), it is obvious that the appeal at bar would not fit under any other subsection of the statute.

The defendant in his brief recognizes that the above quotation summarizes the applicable law in Wisconsin. Defendant argues, however, that he would be unduly harmed by being forced to defend this lawsuit before bringing the same ultimate issue[3] to this court as an appeal from a judgment. Apparently defendant is requesting this court to hear the merits of this case in the interest of justice, even though the order is not appealable.

“. . . The right to appeal is statutory and exists only when and to the extent that the statute grants it. . . .

“Neither the waiver or consent of a respondent, nor the willingness of this court to consider a matter in the interests of justice, gives us authority to take jurisdiction where none is conferred by law. . . .” Jaster v. Miller
(1955), 269 Wis. 223, 234, 69 N.W.2d 265. (Emphasis supplied.)

Admittedly, the position this court took in the Jaster Case, supra, has been modified by the subsequent addition to the statutes of sec. 274.11(4), Stats.,[4] and by later cases. The modified rule was announced in August

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Schmidt Co. v. Hardware Dealers Mut. Fire Ins. Co. (1965), 26 Wis.2d 517, 521, 522, 133 N.W.2d 352:

“. . . The language in Jaster v. Miller (1955), 269 Wis. 223, 69 N.W.2d 265, relied on by the defendants, to the effect that parties cannot either by failure to raise the question or by consent confer jurisdiction upon this court to review an order which is not appealable, has been qualified by the amendment to sec. 274.11(4) and by recent decisions of this court. It is now established that although no proper notice of appeal has been serve if an appealable order or judgment has been entered a respondent by participating in this court in the review of the merits of the judgment without making an appropriate and timely objection[5] to the jurisdiction over his person waives the objection. . . .” (Emphasis supplied.)

Even under this modification, however, an appealable order or judgment must be involved in the case before this court has jurisdiction. Neither the record nor the briefs of the parties indicate that an appealable order or judgment has been entered in this case.[6]

Defendant also contends on this appeal that the trial court erred in considering additional evidence on the motion to vacate and that its study is limited by the statute to a “review” and nothing else.

We do not reach defendant’s contention as to the restrictiveness or limitation of the review statute as contended by defendant because of our conclusion that the appeal must be dismissed.

By the Court. — Appeal dismissed.

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