Opinion
October 2, 1961 —
October 31, 1961.
APPEAL from an order of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Dismissed.
For the appellant the cause was submitted on the briefs of Edna Taylor Giles Norden of Madison, in pro. per., and for the respondent on the brief of Noreen G. Bengston of Madison.
An action to foreclose a second mortgage against defendant-appellant, Edna Norden, and against defendant-respondent, Commercial State Bank, the first-mortgage holder, was commenced in April, 1960.
The complaint alleges that Edna Norden resides in the town of Blooming Grove, Route 4, Madison, Wisconsin. and that the Commercial State Bank has a note secured by a mortgage dated April 11, 1958, upon the premises in the amount of $14,070. The complaint further alleges that Edna Norden executed a note and mortgage on April 11, 1958, in the amount of $7,175 bearing interest at six per cent, payable in full May 15, 1959, and that the defendant Norden defaulted upon the principal and interest. Judgment of foreclosure is demanded.
The Commercial State Bank filed its answer on May 11, 1960, and by its answer alleges that its note and mortgage have priority to the plaintiff's mortgage.
The defendant, Edna Norden, filed an answer and counterclaim on May 27, 1960, and sets forth allegations requesting reformation of the note and dismissal of the complaint. The answer further admits the correctness of her address as alleged in the complaint.
An affidavit of the sheriff of Dane county reveals that on the 6th day of June, 1960, he served a reply to the answer on Edna Norden personally.
Alsmeyer filed an affidavit of service on July 15, 1960, which stated that a notice of trial had been mailed to Edna Norden on June 6, 1960, addressed to her residence alleged in the complaint, with instructions to admit service and return; that though the letter had a printed return address, the postmaster had not returned such letter.
On December 29, 1960, the deputy clerk of circuit court branch No. 1, Dane county, sent a registered letter to Edna Norden at the same address setting the time for trial at 9:30 a. m., March 6, 1961. The letter was returned "unclaimed."
Edna Norden, on March 2, 1961, filed a counteraffidavit denying receipt of the notice of trial. Norden then, on March 3d, filed an affidavit of prejudice against Honorable RICHARD W. BARDWELL and Honorable NORRIS E. MALONEY, judges of the first and third branches of the circuit court for Dane county.
On March 6, 1961, Edna Norden filed two notices of motion and two separate motions, the first that the chairman of the board of circuit judges call some other circuit judge to attend and hold court, tile second to correct the calendar and to strike therefrom the action for failure to serve a notice of trial.
At 9:30 on March 6, 1961, the motions were taken up by the court with Judge BARDWELL presiding. Judge BARDWELL indicated that he would deny the motion to strike from the calendar, but would grant the motion for change of venue and request the chairman of the board of circuit judges to call another circuit judge. He noted that a judge from another circuit would be present March 15th, indicated that the chairman might see fit to designate that judge, and accordingly set the action for trial on March 15, 1961. These oral directions of the court appear in the record by a reporter's transcript and do not appear to have been entered in writing as an order.
Mrs. Norden appealed from the "order" as set forth in the transcript.
Sec. 270.53(2), Stats., provides that, "Every direction of a court or judge made or entered in writing and not included in a judgment is denominated an order."
This appeal must be dismissed because the "order" referred to in the notice of appeal was not made or entered in writing.
Even if an order had been made or entered in writing denying appellant's motion to strike the action from the calendar, it would not have been appealable and the appeal would have had to be dismissed.
Except where special statutes apply, the only orders which are appealable are listed in sec. 274.33, Stats. It is clear that an order denying a motion to strike a case from the calendar does not qualify under any of the types listed. Long ago it was held that a motion to strike a case from the calendar was deemed to be equivalent to a motion for continuance and orders refusing a continuance are not appealable. They are mere matters of practice and not affecting the merits.
Whitefoot v. Leffingwell (1895), 90 Wis. 182, 185, 63 N.W. 82.
Appellant claims that Judge BARDWELL had no jurisdiction to decide her motion to strike from the calendar because that motion had not been pending when she moved for a change of venue on account of prejudice. It is clear from the transcript that Judge BARDWELL considered that it had been pending and therefore he could properly decide it.
Sec. 261.08(3), Stats., provides in part that, "The filing of such affidavit shall not deprive the presiding judge of the circuit, or of the branch of a circuit court in which the case is pending, of jurisdiction to determine pending motions made by the party filing such affidavit."
Sec. 274.33(3), Stats., includes in the list of appealable orders an order which "decides a question of jurisdiction." The context of the order of this court which added this type of order to the list of appealable orders suggests that the court was mainly concerned with orders deciding a question of the court's jurisdiction over the person of a defendant. Whatever further scope was intended in referring to an order which "decides a question of jurisdiction," it did not extend to an order, otherwise not appealable, entered by a particular judge after he had been named in an affidavit of prejudice.
See secs. 262.17 and 274.33(3), Stats., as amended September 1, 1956, 271 Wis. pp. vii and x.
Appellant failed to supply a printed appendix as required by Supreme Court Rule 6(5), sec. 251.26, Stats. The attempted appeal appears dilatory. For these reasons double costs will be allowed.
By the Court. — Appeal dismissed; respondent to have double costs.