Opinion
No. 237.
Argued May 6, 1968. —
Decided June 4, 1968.
APPEAL from a judgment of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Affirmed.
For the appellants there was a brief by Rudolph W. Talsky, attorney, and Francis L. McElligott of counsel, both of Milwaukee, and oral argument by Mr. Talsky.
For the respondent there was a brief and oral argument by Bernard F. Mathiowetz of Milwaukee.
This is an action to set aside the 1964 deed by which Adam Makowski (ninety-three years of age) conveyed his residence to his niece Laura Telisky. The conveyance reserved a life estate in Makowski.
The record and transcript are approximately 500 pages long. Yet the plaintiffs-appellants neglected to print an appendix to comply with sec. (Rule) 251.34 (5), Stats. None of the trial court's findings, conclusions, nor any of the testimony, nor indeed of the trial court's decision, has been printed or abridged. No explanation for this deficiency has been given.
From the record and the trial court's decision the basic facts surrounding the questioned transaction are easily reconstructed.
On and prior to July 9, 1964, Adam Makowski owned a home located at 1551-1553 South Twenty-sixth street in Milwaukee. Anton and Ruth Berlinski were tenants of Makowski and also lived at that address. Because Makowski had little or no formal education and could not speak English, many of his business affairs were handled by the Berlinskis.
In June of 1958 Makowski opened a joint account with Anton Berlinski at the Lincoln State Bank. In May of 1959 the balance in the account was $5,427.83. Various withdrawals were made by Berlinski over the years and the balance in the account had diminished by July, 1964, to $187.15.
Laura Telisky was Makowski's niece, her father having been Adam's twin brother. Laura lived in Oak Park, Michigan, and was approximately fifty-eight years old. She had visited with her uncle over the years. Laura visited her uncle on July 8 and 9, 1964. During this visit she stayed at the Schroeder Hotel. On July 8th, after Laura arrived at Makowski's home, he requested that she accompany him to the Lincoln State Bank where he could make inquiry into the status of his savings account and a safe-deposit box which he maintained there. Upon being informed of the balance in the savings account, Makowski had the account closed and opened a new account in his name only. Laura testified that Makowski was "very upset and very shocked" when he learned of the balance. Makowski did not have his key and could not get into his safe-deposit box. The two returned to the bank the next day and the box was drilled open. The contents of the box, including a deed, a will, and a power of attorney to Berlinski, were withdrawn by Makowski and a new box was rented in the names of Makowski and Laura. Laura and Makowski then went across the street to the law offices of Attorney Victor Napieralski (Napieralski being selected because of his Polish name). It was in Napieralski's office that the conveyance in question was made. The details of that transaction are further set forth in the opinion.
This action was commenced in October of 1964 by Adam Makowski. The pleadings and trial in this action proceeded on the theory that Laura Telisky had obtained the deed by fraud and false representations. Following a trial to the court, the plaintiff, Adam Makowski, died on February 12, 1967, prior to the trial court's decision in this case, and Anton Berlinski, special administrator of the estate of Adam Makowski, was substituted as party plaintiff. Later judgment was entered dismissing the complaint on its merits. Plaintiffs appeal.
Appellants have made it exceedingly difficult to review this case on its merits since there is no appendix. Sec. (Rule) 251.34 (5), Stats., requires such an appendix.
In Lindahl v. Lindahl this court said:
(1963), 19 Wis.2d 379, 384, 120 N.W.2d 142, 121 N.W.2d 286.
". . . The purpose of this rule is to enable us in the limited time available to give due consideration to all the cases presented to us."
On page 6 of appellants' brief they state:
"On appeal this court's duty is to determine whether the trial court's findings are so erroneous as to be contrary to the great weight and clear preponderance of the evidence. This requires an examination of the evidence to determine whether there is sufficient credible evidence to support the findings."
Obviously, the questions appellants seek to present on this appeal cannot be determined without an examination of all the proceedings in the court below.
In Peterson Cutting Die Co. v. Bach Sales Co., the court said:
(1955), 269 Wis. 113, 118, 68 N.W.2d 804.
"The volume of work to be done by this court does not leave time for the justices to search the original record for each one to discover, if he can, whether appellant should prevail. An appendix conforming to Rule 6 [now sec. (Rule) 251.34, Stats.] makes readily available to each justice the matters which he must know if he is to give intelligent attention to the issues presented by the appeal. It is counsel's duty to the court as well as to his client to furnish it, . . . ."
We have searched the record and find the trial court's findings supported by the great weight and clear preponderance of the evidence. We would drop the matter there except for the fact that plaintiffs attack the integrity of Attorney Napieralski and this appeal should not be ended without our affirming the trial court's approval of Attorney Napieralski's conduct.
We find that testimony of Mr. Napieralski, an attorney since 1927 and a court commissioner for the last twenty years, is particularly persuasive in establishing that no fraud had been perpetrated. Napieralski had never met either Laura or Makowski prior to the office consultation on July 9, 1964. He met with them for approximately three hours. During this meeting, Makowski complained about the manner in which his affairs were being handled by Berlinski. Napieralski's testimony indicates that he took great pains to insure that Makowski understood his acts. Napieralski concluded that in his opinion Makowski was fully competent, knew what he was doing, was under no pressure from Laura Telisky, and acted under his own free will. The trial court concluded:
". . . Mr. Napieralski has been a practicing attorney for more than forty years and has specialized in probate and real estate law. He has long been a Court Commissioner for Milwaukee County. He is a person of impeccable integrity as well as diligent in the performance of his duties as an attorney. This court is convinced beyond a shadow of a doubt that Mr. Victor Napieralski carefully explained to the plaintiff the nature of the papers he had prepared at the request of the plaintiff and before the plaintiff signed them. It was the uninfluenced wish and desire of the plaintiff to convey his real estate holdings to his niece, subject to his life estate."
The entire record leads one to the conclusion that Attorney Napieralski's appraisal of the situation was entirely correct. Furthermore, this case rested in large part on the credibility of witnesses. This court has repeatedly held that the question of credibility of witnesses is one that lies peculiarly within the province of the trial court. The credibility of the Berlinskis was crucial to the forces trying to set aside the deed. The trial court found the Berlinskis' testimony to be "clearly motivated by self-interest" and "permeated with bias and prejudice." This was the trial court's prerogative to so find and its finding binds this court.
Estate of Dobrecevich (1962), 17 Wis.2d 1, 115 N.W.2d 597; Estate of Rich (1965), 26 Wis.2d 86, 131 N.W.2d 909.
By the Court. — Judgment affirmed.
No double costs are taxed because of failure to supply an appendix. The respondent did not supply a supplemental appendix of her own because she understandably believed appellants were raising only questions of law.