Opinion
November 8, 1940 —
December 3, 1940.
APPEAL from part of a judgment of the circuit court for Adams county: C. F. VAN PELT, Circuit Judge. Motion to dismiss granted.
Orland S. Loomis of Mauston, for the appellants.
Schubring, Ryan, Petersen Sutherland of Madison, for the respondents.
Taxpayers' action. This action was begun on or about July 13, 1939, by Albert Thoenig, Minnie Peart, Elizabeth Krueger, and Clemons N. Kuderer, plaintiffs, against the city of Adams, Edwin Blomquist, Ray Sherman, R. J. Goggins, George Anacker, Herman Rutlin, August Walczyk, Mrs. R. Herriot, Adams County State Bank, and the Peoples Bank of Coloma, defendants, to enjoin the city of Adams from purchasing the property of the Wisconsin Power Light Company.
A short time prior to the commencement of this action, this court affirmed the decision of the circuit court for Dane county which approved the orders of the public service commission of Wisconsin relating to the purchase by the city of Adams of the property of the Wisconsin Power Light Company for the sum of $30,000. By the terms of the order payment was to be made within four months from the date of the final determination on the appeal. The city was making arrangements to procure a loan in order to make the payment when this taxpayers' action was started. The commencement of the action resulted in delay, and it became apparent that the money could not be paid within the prescribed period, whereupon the city of Adams made application to the public service commission to extend the time of payment. The Wisconsin Power Light Company moved to dismiss the application upon the ground that the public service commission was without jurisdiction to grant the extension, which motion was granted. An action was brought to review this determination of the commission and is now pending in the circuit court for Dane county. When this action was brought on for trial the plaintiffs moved to dismiss the action on the ground that the issues in the case had become moot. The defendants moved to dismiss the action on the merits claiming maintenance. Costs were stipulated. The trial court took the matter under advisement and finally entered a judgment which is as follows:
"It is hereby adjudged and decreed, that the issues in this case, and the case, have become and are moot, and that the case is hereby dismissed, and that the defendant city of Adams and the city officers of said city of Adams do have and recover of the plaintiffs costs in the sum of two hundred fifty dollars ($250); that no costs be taxed in favor of or against either of the defendants, Adams County State Bank and the Peoples Bank of Coloma."
Judgment was entered on March 20, 1940. On June 8, 1940, the defendants, city of Adams, Edwin Blomquist, Ray Sherman, R. J. Goggins, George Anacker, Herman Rutlin, August Walczyk, and Mrs. R. Herriot served the following notice of appeal:
"Please take notice, that the defendants, city of Adams, Edwin Blomquist, Ray Sherman, R. J. Goggins, George Anacker, Herman Rutlin, August J. Walczyk, and Mrs. R. Herriot, hereby appeal to the supreme court of the state of Wisconsin from that part of the judgment rendered by the above-named court herein entered on the 20th day of March, 1940, in favor of said plaintiffs and against said defendants, which adjudges `that the issues in this case, and the case, have become and are moot.'"
When the record reached this court, and on September 20, 1940, the plaintiffs moved that the appeal be dismissed upon the ground, among others:
"That the part of the judgment attempted to be appealed from are conclusions of law merely, and do not constitute a judgment within the meaning of section 270.53 (1) of the statutes; is not the final determination of the rights of the parties in the action but merely a recital of the reasons for the entry of judgment dismissing the action."
The motion was brought on for a hearing and submitted as of the 8th day of November, 1940.
Sec. 274.11 (1), Stats., provides:
"An appeal is taken by serving notice of appeal, signed by the appellant or his attorney, on the adverse party and on the clerk of the court in which the judgment or order appealed from is entered, stating whether the appeal is from the whole or some part thereof, and if from a part only, specifying the part appealed from."
An inspection of the judgment shows that the appellants have attempted to appeal not from a judgment but from a recital contained in the judgment. If, as a matter of fact, the recital was erroneously made for the reason that the case is not moot, then the judgment is erroneous and should be reversed. What is attempted here is to leave the judgment itself stand and have the recital either stricken out or corrected. The verdict of a jury in case of a jury trial, the findings of the court in case of trial by the court, even though they be incorporated in the same instrument, are not a part of the judgment. This rule applies to findings of fact and also to conclusions of law. Pier v. Prouty (1886), 67 Wis. 218, 223, 30 N.W. 232; Judge v. Powers (1912), 156 Iowa, 251, 136 N.W. 315. See 30 Am. Jur. p. 823, § 7, and cases cited.
Appellants seem to be under the impression that in some way their rights in the matter now pending in the circuit court in the action to review the decision of the public service commission are affected by this judgment. We think this arises from the misconception as to the character of a judgment dismissing a case because it is moot. A moot case is one in which it is sought to get a judgment on a pretended controversy when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy. Ex Parte Steele (D.C. 1908), 162 Fed. 694.
This case is of the third class. The court dismissed the case for the reason that it was of the opinion that no adjudication it could make could have any particular legal effect because the time within which payment was to be made had expired. The court thereupon declined to proceed further with the case, and dismissed it for the reason that any judgment it could render would be ineffectual. This is not an adjudication of the rights of the parties. It is a refusal to adjudicate, the rights of the parties because in the opinion of the court the adjudication would be futile. If the court was in error, and the action should not have been dismissed for that reason, the appeal should have been from the judgment. The statute does not authorize appeals from recitals, findings, conclusions of law, or directions or orders for judgment.
By the Court. — The motion to dismiss the appeal is granted with $10 costs.