Opinion
April 1, 1965 —
April 27, 1965.
APPEAL from an order of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Dismissed.
For the appellant there was a brief by Kluwin, Dunphy, Hankin Hayes of Milwaukee, and oral argument by Gerald T. Hayes.
For the respondent there was a brief by Harold Harris, attorney, and Alvin Richman of counsel, both of Milwaukee, and oral argument by Mr. Harris.
Plaintiff Margaret Buckley brought action for damages for personal injuries against Park Building Corporation (hereinafter referred to as defendant) and against another, not involved on this appeal. After a demurrer by defendant was sustained, and upon failure of plaintiff to amend her complaint, judgment was entered May 14, 1963, dismissing the complaint against defendant.
On December 11, 1963, plaintiff obtained an order to show cause why the judgment should not be vacated and set aside. It was based upon an affidavit of counsel stating that he had recently learned certain facts seemingly relevant to possible liability of defendant for plaintiff's injuries. The order set a hearing for December 23d and was served on defendant's counsel. The record does not disclose the proceedings on that date, although counsel agree that there was a hearing, defendant's counsel stating he "appeared specially."
On January 7, 1964, the court entered an order as follows:
"Upon the annexed Affidavit and upon all the records, files and proceedings had previously in this case, and upon motion of HAROLD HARRIS, Attorney for the plaintiff,
"IT IS HEREBY ORDERED, that the plaintiff be permitted relief under Section 269.46 of the Wisconsin Statutes, particularly on the grounds of excusable neglect; and
"IT IS HEREBY FURTHER ORDERED, that said plaintiff be permitted to amend her pleadings against the PARK BUILDING CORPORATION only within twenty (20) days from the 23rd day of December, 1963."
The annexed affidavit, referred to in the order, included the following assertions:
"3. That subsequent thereto, affiant secured information relative to the alleged liability of the PARK BUILDING CORPORATION and brought an Order to Show Cause, dated December 11, 1963, returnable the 23rd day of December, 1963 before this Court in which said plaintiff asked the defendant PARK BUILDING CORPORATION why it should not again be made a party under the relief afforded in Section 269.46 of the Wisconsin Statutes and for other reasons set forth in the Affidavit supporting the above Order to Show Cause.
"4. That this Court, in the exercise of its discretion, has now permitted the plaintiff to amend the complaint against the PARK BUILDING CORPORATION only and, further, to do so within the limitations set forth in its opinion, and that said plaintiff has been permitted the opportunity to replead on the grounds of excusable neglect on the part of her counsel, and that said plaintiff would have twenty (20) days from the date of the hearing to amend the complaint only insofar as the PARK BUILDING CORPORATION is involved."
It is conceded that no copy of the proposed order of January 7th was served on defendant's counsel before being presented to the court.
Rule 10 of the circuit court for Milwaukee county requires, with exceptions not here material, that "Before submitting to the Court any . . . proposed order . . . a copy should always be served on opposing counsel." Without intimating that the failure to serve has any effect on the validity of the order, we do ruefully contemplate the amount of unnecessary travail which might have been avoided by compliance with this excellent rule.
Plaintiff served an amended complaint January 10, 1964. Defendant appealed from the order of January 7th. We dismissed the appeal for the reason that the order was not appealable. Defendant later served what it entitled a "Plea in bar and answer." The plea in bar alleged the entry of the judgment in 1963; that no appeal had been taken therefrom; and that no order had been made setting it aside.
Defendant then moved "for summary judgment . . . dismissing the amended complaint . . ." The supporting affidavit set forth the entry of the 1963 judgment and the failure to appeal therefrom. No counteraffidavit was filed.
On October 26, 1964, the circuit court entered an order denying the "motion . . . for summary judgment." Defendant appealed. Shortly before oral argument, plaintiff moved to dismiss, and we reserved decision on the motion until after argument.
Defendant asserts that the May, 1963, judgment in its favor has never been set aside and still constitutes a final determination of the rights of the parties; that the amended complaint is a fugitive pleading without force. Plaintiff counters, of course, with the order of January 7, 1964, which "permitted relief under section 269.46" and expressly allowed plaintiff to amend her pleadings. Although the order did not employ the words "vacate," "set aside," or "open up," she argues that the status of the judgment, under the order, is that it continues to be of record, but its finality as a determination of the rights of the parties is suspended, pending a new determination thereof.
This court has pointed out the distinction between opening and vacating a judgment. Where a party against whom a default money judgment has been rendered obtains relief from a judgment, so that he may defend, it is the frequent, and perhaps preferred, practice to open up the judgment, but, by not vacating it, to permit the lien of the judgment to stand as security, pending the outcome of the trial upon the merits. In the instant case the May, 1963, judgment simply dismissed the complaint and did not award costs. Thus the usual reason for merely opening a judgment, the preservation of a lien, did not obtain. But although the order was vague with respect to the exact "relief" permitted, it was specific in authorizing an amended complaint. It can only mean that the judgment was opened up pending a fresh determination of the merits.
State ex rel. Chinchilla Ranch, Inc., v. O'Connell (1952), 261 Wis. 86, 96, 51 N.W.2d 714. See Glassner v. Medical Realty, Inc. (1964), 22 Wis.2d 344, 352, 126 N.W.2d 68.
Defendant challenges the validity, or at least propriety, of the order of January 7, 1964. Counsel correctly points out that it was entered more than sixty days after the end of the term during which the judgment was entered, and, accordingly, was not authorized by sec. 269.46(3), Stats. It was, however, entered within one year after notice of the judgment, and therefore timely under sec. 269.46(1).
Defendant contends that the order was entered without notice and without sufficient showing of excusable neglect, and for both those reasons was not authorized by sec. 269.46(1), Stats. Plaintiff contends that the order represented the decision which the circuit court reached and announced at the hearing on the previous December 23d. Defendant had notice of that hearing and its counsel was present. Plaintiff further contends that a sufficient showing of excusable neglect was made so that the circuit court did not abuse its discretion in opening the judgment.
Because of our conclusion that this appeal must be dismissed, we do not resolve the conflicting claims just described.
Defendant apparently made no application to the circuit court to vacate the order of January 7, 1964, but attempted to appeal to this court. Counsel contended that the order was appealable under sec. 274.33(2), Stats., because it was "made upon a summary application in an action after judgment." The language just quoted omits the statutory requirement of finality. The pertinent portion of sec. 274.33(2) is: "A final order affecting a substantial right . . . made upon a summary application in an action after judgment." (Emphasis supplied.)
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 though it affects a substantial right and is made, obviously, in an action after judgment. Defendant's appeal from the order of January 7, 1964, was therefore dismissed. The fact that the order is not appealable does not mean that defendant could never have it reviewed here. If the ultimate judgment should go against defendant, defendant could, on appeal from the judgment, have the order reviewed. It would then be reviewable as an intermediate order which involves the merits and necessarily affects the judgment.
Kelm v. Kelm (1931), 204 Wis. 301, 235 N.W. 787; Hargraves v. Hoffmann (1931), 205 Wis. 84, 236 N.W. 556; State v. Eigel (1933), 210 Wis. 275, 277, 246 N.W. 417; McKey v. Egeland (1936), 222 Wis. 490, 269 N.W. 245; Old Port Brewing Corp. v. C. W. Fischer Furniture Co. (1938), 228 Wis. 62, 66, 279 N.W. 613.
Sec. 274.34, Stats.
Defendant contends that the order of October 26, 1964, is appealable because it "denies an application for summary judgment." The motion says that it seeks summary judgment and the court so referred to it in denying it. Taking the label literally, the order would be appealable as claimed.
Sec. 274.33(3), Stats.
We conclude, however, that the nature of the motion and order denying it must be determined from its substance, and not from the label defendant chose to apply. The amended complaint was expressly authorized by the order of January 7, 1964. It properly stands as the complaint in the action unless that order be vacated, or disregarded as a nullity. Defendant's so-called "plea in bar" raised only one issue of law — whether the judgment is still in full force, i.e., whether the January 7, 1964, order was a nullity. The "plea in bar" did not deny any allegation of the complaint nor raise any defense to the cause of action therein alleged. Defendant's motion for summary judgment did not purport to resolve any of the issues made by its answer to the amended complaint apart from its "plea in bar." In substance, it simply brought on for hearing the issue of law raised by the "plea in bar." The affidavit supporting the motion restated matters already of record with respect to the 1963 judgment and counsel's conclusion of law concerning the status of the judgment. No evidentiary facts were stated. Although the motion said that it sought the entry of a judgment, it was premised upon the claim that there was already a final judgment in the action in full force and effect. Assuming, arguendo, that the January 7, 1964, order is a nullity, it would follow that the proceedings after the 1963 judgment and inconsistent therewith are improper, and defendant would be entitled to an order vacating them and striking the amended complaint, but not to a second and redundant judgment.
In reality, defendant's motion was not a motion for summary judgment, though so designated, and an order denying it was not appealable as an order denying an application for summary judgment.
An order refusing to vacate an order opening a judgment is no more appealable than the order vacating the judgment. Although a motion to strike a pleading is, under some circumstances, treated as equivalent to a demurrer, so that an order granting or denying the motion is appealable, defendant's instant motion, if considered as a motion to strike the amended complaint, could not be deemed tantamount to a demurrer. The motion is not grounded on lack of merit in the amended complaint, but upon a claim that the court improperly permitted plaintiff to serve it.
Kelm v. Kelm, supra, footnote 3.
See State v. Chippewa Cable Co. (1963), 21 Wis.2d 598, 611, 124 N.W.2d 616.
Orders denying a motion to dismiss, or denying a motion for judgment on the pleadings are not appealable.
Szuszka v. Milwaukee (1961), 15 Wis.2d 241, 112 N.W.2d 699.
The true nature of defendant's motion appears to be a motion to vacate all proceedings after the 1963 judgment inconsistent therewith, and to strike the amended complaint. The order denying said motion is not appealable, and the appeal must be dismissed.
By the Court. — Appeal dismissed.
We join in the court's opinion that this appeal should be dismissed for the reason that the order appealed from is not appealable. We would dismiss the appeal on the additional ground that the appeal is "frivolous" which ground (among others) was asserted by respondent in her motion, made shortly before oral argument, to dismiss the appeal.
By its order of January 7, 1964, the trial court, in effect, reopened the judgment in this case, stating that the plaintiff was "permitted relief under Section 269.46 of the Wisconsin statutes, particularly on the grounds of excusable neglect." Deeming itself aggrieved by such order, Park Building Corporation attempted to appeal from such order, but on April 23, 1964, this court dismissed such appeal as having been taken from a nonappealable order.
Thereupon, Park Building Corporation filed a plea in bar in the trial court and moved in such court for summary judgment, alleging that the original judgment was still in force; thus barring the plaintiff's action. This appeal is from the trial court's denial of the application for summary judgment.
Although it is labeled a motion for summary judgment, the present motion is, in our opinion, an obvious attempt to obtain a second ruling on the precise same point which was the subject of the previous abortive appeal. This is not a valid motion for summary judgment; it is instead an attempt to get a second kick at the cat. We regard both the motion and the appeal as frivolous and would dismiss with double costs, pursuant to sec. 251.23(3), Stats. See Estate of Bair (1956), 272 Wis. 14, 16, 74 N.W.2d 639; Grossman v. Kuehn (1942), 241 Wis. 55, 56, 4 N.W.2d 124; Kellogg-Citizens Nat. Bank v. Francois (1942), 240 Wis. 432, 3 N.W.2d 686.