Opinion
No. 234.
Argued April 27, 1970. —
Decided June 2, 1970.
APPEAL from a judgment of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Affirmed.
For the appellant there were briefs by Robert P. Russell, corporation counsel for Milwaukee county, and Joseph J. Esser, assistant corporation counsel, and oral argument by Mr. Esser.
For the respondents there was a brief by Peregrine, Schimenz, Marcuvitz Cameron and Hugh R. Braun, all Milwaukee, and oral argument by Mr. Braun.
This is an appeal in a condemnation suit brought by the state from a judgment on a jury verdict in favor of the plaintiffs in the amount of $13,615, plus costs. The value of the taking found by the jury was based upon a partial taking of land belonging to Roland Kiefer and Lillian Kiefer, his wife, located on the corner of South 76th Street and West Rawson Avenue in the city of Franklin. This parcel of land with a frontage of 184 feet on West Rawson Avenue and 185 feet on South 76th Street had a one-family residence on the north portion and a gasoline filling station on the corner. On October 28, 1968, the State Highway Commission (commission) took a 10-foot strip of land along South 76th Street and a 15-foot strip along West Rawson Avenue. For this taking the commission awarded $13,135.
The Kiefers appealed and the jury found the fair-market value before taking was $61,750 and the fair-market value after the taking $35,000, making the value of the taking $26,750. Consequently, the court ordered judgment for the additional $14, 229.08.
The State Highway Commission attempts to raise four issues: (1) The admissibility of expert testimony concerning damages because, of an agreement between the Kiefers and a third party; (2) the admission of testimony of an expert witness concerning monetary loss for inconvenience; (3) the admissibility of testimony concerning a change in zoning; and (4) errors in instructions referring to loss of business and probability of rezoning. These issues cannot be raised on this appeal as a matter of right because no written motion for a new trial was made and they were not raised with any specificity in the trial court.
At the close of the trial, the attorney for the commission orally moved to set aside the verdict and for a new trial because of errors and stated he had not had time to go into the matter but the errors were certain items of argument, admissibility of certain evidence, and certain information and evidence and the verdict appeared to be biased and prejudicial. After the oral motion was denied, no effort was made to comply with sec. 270.49 (3), Stats., which requires, "All motions for new trials shall be reduced to writing and filed before being heard."
As early as 1957, in Wells v. Dairyland Mut. Ins. Co., 274 Wis. 505, 518, 80 N.W.2d 380, this court pointed out that where there is a trial to a jury no error of the trial court would be reviewable as a matter of right on appeal unless such error was the foundation for a motion for a new trial, if the error was of such a nature the trial court could correct by granting a new trial. The commission argues it has substantially complied with the section and with this requirement; we think not. The trial court need not work on a generalization of errors. State v. Escobedo (1969), 44 Wis.2d 85, 170 N.W.2d 709; see also Jonas v. Northeastern Mut. Fire Ins. Co. (1969), 44 Wis.2d 347, 171 N.W.2d 185; Withers v. Tucker (1965), 28 Wis.2d 82, 135 N.W.2d 776.
The motion for a new trial in this case was made as a mere formality and, by doing it orally and without specificity, clearly circumvented the policy behind the rule. A motion for a new trial is a serious and important foundation for an appeal in a jury case and should not be made in the trial court until counsel is prepared. With the increased volume of work this court now has, it does not have the time and will not consider issues not properly preserved and raised.
It is argued on the basis of sec. 269.51 (1), Stats., that since Kiefers did not move to dismiss the appeal before participating therein they waived their objection to the irregularity of the appeal. We do not consider the failure to observe the Wells rule to be an irregularity although failure to observe sec. 270.49 (3) might be so considered. The cases of Estate of White (1950), 256 Wis. 467, 41 N.W.2d 776; Guardianship of Barnes (1957), 275 Wis. 356, 82 N.W.2d 211; and Barnard v. Coates (1965), 28 Wis.2d 1, 135 N.W.2d 809, are distinguishable because this case involves a failure to raise specific errors which could be corrected by granting a new trial, while those involved a later service of a notice of appeal or the timeliness of appeal, which the trial court could do nothing about.
The commission argues the circumstances of this case demand that this court exercise its discretion under the provisions, of sec. 251.09, Stats., and order a new trial in the interest of justice; we think not. In Savina v. Wisconsin Gas Co. (1967), 36 Wis.2d 694, 704, 154 N.W.2d 237, we pointed out, citing Lock v. State (1966), 31 Wis.2d 110, 142 N.W.2d 183, that the test under this section in criminal and civil cases was that this court must be convinced there has been a miscarriage of justice. Assuming sec. 251.09 applies, the commission has not shown any injustice. This case does not compel and this court is not inclined sua sponte to examine the merits of the issues raised. Consequently, we do not reach the merits, and the judgment appealed from must therefore be affirmed.
By the Court. — Judgment affirmed.