Opinion
November 8, 1950 —
December 5. 1950.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Appeal dismissed.
For the appellant there was a brief by Hougen, Brady Murphy of Manitowoc, and oral argument by Frank Murphy.
For the respondent Industrial Commission there was a brief by the Attorney General, and Mortimer Levitan and E. Weston Wood, assistant attorneys general, and oral argument by Stewart G. Honeck, deputy attorney general.
In the above-entitled action the plaintiff and appellant, H. A. Falk, attempted to appeal from a judgment of the circuit court for Dane county dated June 1, 1950, confirming an order of the Industrial Commission of Wisconsin dismissing plaintiff's application for compensation. Notice of entry of the judgment was served upon plaintiff's attorneys on June 6, 1950. As stated in an affidavit by plaintiff's counsel, he prepared a notice of appeal to the supreme court on June 27, 1950, to enable plaintiff's counsel to have the notices of appeal ready to be served upon instruction of plaintiff in the event he determined to take an appeal; and on July 1, 1950, plaintiff instructed his counsel to take an appeal. On July 1, 1950, plaintiff's counsel forwarded by mail copies said notice of plaintiff's appeal to the defendants and respondents, Industrial Commission of Wisconsin and Falk Hardware Company, and also to the clerk of the Dane county circuit court at Madison. On July 1, 1950, appellant's counsel wrote a letter to the sheriff of Marathon county at Wausau, Wisconsin, wherein is located the home office of the defendant, Employers Mutual Liability Insurance Company, inclosing a copy of said notice of appeal and requesting service upon an officer of said Employers Mutual Liability Insurance Company not later than July 5, 1950, and in said letter appellant's counsel stated that said date "is the absolute dead line." The record shows that service of the notice of appeal was admitted by the clerk of the Dane county circuit court and by the attorney general and an assistant attorney general on behalf of the Industrial Commission on July 3, 1950; and by an officer of Falk Hardware Company on July 5, 1950. But service upon the Employers Mutual Liability Insurance Company was not made by the sheriff of Marathon county until July 8, 1950. Appellant's counsel further states in his affidavit that he requested in a letter addressed to the sheriff of Marathon county an explanation of why the sheriff's affidavit of service states that the notice was served upon the insurance carrier on July 8, 1950; and that in reply appellant's counsel received a letter signed by the deputy sheriff of Marathon county and stating that the sheriff's office was closed from the afternoon of July 1st to the morning of July 5th, and that no mail was received until July 6th and that the sheriff served the papers at his first convenience. The Industrial Commission moved to dismiss the appeal because the notice thereof was not served upon the defendant, Employers Mutual Liability Insurance Company, within thirty days from the date of service of notice of entry of judgment as required by sec. 102.25 (1), Stats.
So far as here pertinent, sec. 102.25 (1), Stats. — which provides for appeals to this court from judgments entered upon review of any order or award of the Industrial Commission, — reads as follows:
"Said commission, or any party aggrieved by a judgment entered upon the review of any order or award, may appeal therefrom within thirty days from the date of service by either party upon the other of notice of entry of judgment. . . ."
And sec. 274.11 (1), Stats., provides:
"An appeal is taken by serving a notice of appeal signed by the appellant or his attorney on each party adverse to him upon the appeal who appeared in the action or proceeding, and on the clerk of the court in which the judgment or order appealed from is entered, . . . On appeals from a judgment the appellant shall serve the notice of appeal upon all parties bound by the judgment who have appeared in the action."
In several decisions this court has reiterated the rule that when an appeal is not taken within the statutory period allowed therefor the court has no jurisdiction of the matter. Estate of Fish, 200 Wis. 61, 227 N.W. 272; Stevens v. Jacobs, 226 Wis. 198, 275 N.W. 555, 276 N.W. 638; Donny v. Chain of Lakes Cheese Co. 254 Wis. 85, 35 N.W.2d 333. And that consequently an appellant's failure to serve notice of his appeal on one of the parties whose interest is adverse to the interest of appellant is fatal to the court's jurisdiction. Stevens v. Jacobs, supra; Estate of Sweeney, 247 Wis. 376, 19 N.W.2d 849. As in the case at bar the interest of Employers Mutual Liability Insurance Company is adverse to the appellant's interest, notice of appeal had to be served upon that corporation within the thirty-day period prescribed by sec. 102.25 (1), Stats. As the court stated in Stevens v. Jacobs, supra, (p. 201), "The notice of appeal must be served on every party whose interest is adverse to the interest of appellants." And in discussing the applicability of sec. 274.32, Stats., the court then stated also (p. 202):
"Sec. 274.32, Stats., reads: `When a party shall in good faith give notice of appeal and shall omit, through mistake or accident, to do any other act necessary to perfect the appeal or make it effectual or to stay proceedings, the court from which the appeal is taken or the presiding judge thereof, or the supreme court or one of the justices thereof, may permit an amendment or the proper act to be done, on such terms as may be just.' The language of the statute above italicized indicates that the meaning of the statute is that where `notice appeal' has in good faith been `given,' and any other act necessary to perfect the appeal has been omitted through mistake or accident, this court may permit an amendment to any defective paper, or permit the act omitted that is necessary to `perfect the appeal' to be done. The `any other act' which the court may permit to be done is any act other than service of notice of appeal. Service of notice of appeal is an absolute prerequisite of appeal."
As stated in Donny v. Chain of Lakes Cheese Co., supra, in dismissing an appeal for the reason that appellant had failed to serve notice of appeal upon his nonappealing coplaintiffs (p. 88):
"It may be thought that this is highly technical. It appears in this case but if the court relaxes the statute in one case it becomes a precedent and requirements for service of notice appeal are in part fixed by the court and not by statute. In the matter of appeals this court has followed the practice of adhering closely to the statutory provisions and must do so in this case."
It follows that in view of the provisions in sec. 102.25 (1), Stats., limiting to thirty days the time in which an appeal may be taken from a judgment entered upon the review of any order or award of the Industrial Commission, and the provision in sec. 274.11 (1), Stats., requiring notice of the appeal to be served upon all parties bound by the judgment who have appeared in the action, and the decisions of this court in the cases cited herein, the appeal must be dismissed because of the appellant's failure to serve the required notice of his appeal on every party whose interest is adverse to the interest of the appellant.
By the Court. — Appeal dismissed.