Opinion
No. 168.
Argued November 3, 1970. —
Decided December 4, 1970.
APPEAL from a judgment of the circuit court for Winnebago county: WILLIAM E. CRANE, Circuit Judge. Reversed.
For the appellant there was a brief and oral argument by Emanuel N. Rotter of Milwaukee.
No brief or appearance for respondent.
This is an action upon an account for the purchase price of goods sold by the plaintiff Essbro Seamless Floors, Inc. (hereinafter "the appellant") to the defendant H. O. Sitzberger (hereinafter "the respondent"), or, in the alternative, for an accord and satisfaction based on the respondent's check in the sum of $1,500, delivered to the appellant.
The jury returned its verdict in favor of the respondent. The trial court denied appellant's motions for judgment notwithstanding the verdict, to change the jury's answer, and for a new trial. The court ordered judgment for respondent with costs.
Appellant appeals from the amended judgment entered and denial of motions after verdict.
The respondent has not appeared nor has he filed a brief in this appeal. The court was informed that the respondent was not interested in responding to the appeal because he felt that the appeal was frivolous.
Sec. (Rule) 251.57, Stats., provides:
"When a cause is submitted, or presented by counsel for appellant or plaintiff in error, but not by the opposing party, the judgment or order appealed from may be reversed as of course, without argument."
The above rule was formerly numbered Rule 32 (sec. 251.32, Stats.) and was interpreted in Dempsey v. National Surety Co. (1921), 173 Wis. 296, 181 N.W. 218.
The court held, at page 299:
". . . Under our rules as originally framed to meet such a situation, an appeal being regularly reached, the appellant appearing and the respondent in default, the appellant was entitled to have, under Rule 32, supra, the matter appealed from reversed as of course without argument and with the same effect as though heard, and all questions raised by appellant decided in his favor. Such was the procedure recognized in the following cases: Butts v. Fenelon, 38 Wis. 664; Hughes v. Libby, 42 Wis. 639; Oma v. Wilkinson, 129 Wis. 119, 108 N.W. 210."
We reverse "as of course," pursuant to sec. (Rule) 251.57, Stats. Herczeg v. Karns (1968), 39 Wis.2d 290, 159 N.W.2d 47; IFC Collateral Corp. v. Layton Park Bldg. Loan Asso. (1968), 39 Wis.2d 90, 158 N.W.2d 386; State ex rel. Roth v. Ryan (1965), 28 Wis.2d 695, 137 N.W.2d 833.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment in favor of plaintiff in accordance with the demands of the complaint.