Opinion
November 6, 1940 —
December 3, 1940.
APPEAL from an order of the circuit court for Dane county: AUGUST C. HOPPMANN, Circuit Judge. Affirmed.
For the appellant there was a brief by Herbert J. Steffes, district attorney, O. L. O'Boyle, corporation counsel, and Henry S. Reuss, assistant corporation counsel, and oral argument by Mr. Reuss.
K. J. Callahan of Montello, for the respondent.
Action commenced by the county of Milwaukee against the Industrial Commission and the town of Buffalo by the service upon them of a summons and complaint praying for judgment directing the amendment of an order made by the commission in proceedings under sec. 49.03 (8a), Stats., instituted by the county of Milwaukee against the town of Buffalo. The town of Buffalo did not enter a general appearance in the circuit court action, but upon a special appearance for solely that purpose moved for the dismissal of the action upon the grounds that the only remedy available to a party aggrieved by such an order is the appeal therefrom to the circuit court authorized by sec. 49.03 (8a) (c), Stats., and that because no such appeal was taken within the prescribed period of thirty days, the circuit court did not have jurisdiction to review the order. Upon the hearing of the motion the dismissal of the action was ordered by the circuit court, and plaintiff appealed therefrom.
The order of the circuit court, dismissing the action brought by plaintiff in that court, must be affirmed. The only review authorized by statute of a determination made by the Industrial Commission in proceedings under sec. 49.03 (8a), Stats., is by the "appeal" from such a determination which is authorized under and by virtue of the provisions in par. (c) of sec. 49.03 (8a), Stats. But these provisions do not authorize the maintenance of an "action to review" such a determination; and for the reasons stated in Milwaukee County v. Industrial Comm. 228 Wis. 94, 98, 279 N.W. 655, the word "appeal," as used by the legislature in sec. 49.03 (8a) (c), Stats., does not include an action to review. As a proceeding before the Industrial Commission under sec. 49.03 (8a), and a review of its determination therein, under sec. 49.03 (8a) (c), are wholly statutory, the jurisdiction of the circuit court to review such a determination can be invoked only upon the taking of an appeal therefrom in the manner prescribed by the statute. Although we concluded in Milwaukee County v. Industrial Comm., supra, and also in Holland v. Cedar Grove, 230 Wis. 177, 282 N.W. 111, 282 N.W. 448, that the circuit court had acquired jurisdiction in the action brought to review a similar determination by the Industrial Commission, our conclusion was based upon and due to solely the fact that the defendant had entered a general appearance in the circuit court action and had proceeded with the trial without making any objection to the method by which the plaintiff sought to have a review of the commission's determination. There can be no such conclusion, however, in the case at bar inasmuch as there has been but a special appearance by the town of Buffalo for the sole purpose of its motion for the dismissal of the action upon the grounds stated above.
By the Court. — Order affirmed.