November 28, 1967. —
December 22, 1967.
APPEAL from two orders of the county court of Milwaukee county: JOHN A. FIORENZA, Judge. Affirmed as to first order; appeal dismissed as to second order.
For the appellant there was a brief by Alvin H. Eisenberg, attorney, and Edwin A. Star of counsel, both of Milwaukee, and oral argument by Mr. Star.
For the respondent there was a brief by Barbee Jacobson and Lloyd A. Barbee and Thomas M. Jacobson, all of Milwaukee, and oral argument by Thomas M. Jacobson.
Action for malicious prosecution by plaintiff Fred Hale against defendant Lee's Clothiers Jewelers, Inc.
The material allegations of the complaint are as follows: On September 21, 1966, defendant commenced a civil action against plaintiff to collect a debt of $86.64, of which $33.80 was interest and $8.89 was attorney fees. On the same day defendant commenced a garnishment action grounded on the principal action. $111.31 of plaintiff's wages were garnished. Subsequent to a motion by plaintiff to have the garnishment action dismissed on the ground that Wisconsin's before judgment garnishment statutes were unconstitutional, defendant released the garnished wages which had been withheld from plaintiff for ninety-two days. Plaintiff demurred to the complaint in the principal action. Upon the hearing held on the demurrer, defendant consented to the dismissal of the complaint; and on December 22, 1966, the court dismissed the complaint. Both the principal and the garnishment actions had been commenced and prosecuted by defendant maliciously and without probable cause, and both had terminated in plaintiff's favor. Plaintiff alleged that he had been damaged by reason of the institution and prosecution of these actions, described the nature of such damages, and prayed for $5,145.76 compensatory and $25,000 punitive damages.
Defendant's answer in the instant malicious prosecution action: Denied that it had consented to the dismissal of the principal action. Alleged that before arguments on the demurrer in the principal action, its counsel had informed the court that defendant would not argue the demurrer and would not object if the demurrer were sustained. Alleged that the court then sustained the demurrer. Denied that the principal and garnishment actions were terminated in plaintiff's favor. Denied the allegations of damage. Alleged that the principal action had terminated without regard to its merits solely by procurement of plaintiff Hale.
After issue was joined defendant moved for summary judgment dismissing the complaint upon the merits. No affidavits were filed by defendant in support of its motion, defendant relying solely on the verified pleadings. By order entered February 20, 1967, the county court denied the motion for summary judgment.
On February 24, 1967, defendant moved the court to review such order denying its motion for summary judgment. This second motion was accompanied by a copy of the court's order in the original principal action filed February 21, 1967, sustaining plaintiff's demurrer and dismissing defendant's complaint without prejudice. The order provided that the court had been informed that defendant would not object, if the court sustained the demurrer. The motion was also accompanied by an affidavit from defendant's counsel, in which he attested to the above order and stated that plaintiff's cause of action had no merit.
On March 6, 1967, plaintiff's counsel filed an affidavit in opposition to the defendant's motion for review in which he stated that plaintiff had pleaded a proper cause of action, and that defendant had not complied with sec. 270.635 (2), Stats., because the defendant's counsel's affidavit did not set forth the element of knowledge by the affiant. He also contended that there was no legal basis for a motion to review a dismissal of summary judgment.
On April 10, 1967, defendant's counsel filed another affidavit, in which he realleged matters in his answer and previous affidavit, and included the element of his personal knowledge. On the same date an affidavit was submitted by one of defendant's officers, in which he stated that there was still a balance of money due and owing from plaintiff to defendant, which plaintiff had never denied; that there had been no judicial determination of the issues between the two parties; and that the complaint had no merit.
The parties submitted briefs and orally argued the motion for review. On May 1, 1967, the county court denied the motion for review from the bench, because it deemed there were triable issues in the case, and the motion for summary judgment had, in some respects, not been properly brought.
Defendant appeals from both the orders of February 20, 1967, and May 1, 1967.
While other questions are raised by appellant-defendant, we find it only necessary to resolve these two issues:
(1) Is a defendant entitled to a summary judgment of dismissal, when he moves for summary judgment and files no supporting affidavit but relies solely on the verified pleadings?
(2) Is an order appealable, which denied a motion for review of an order denying a motion for summary judgment?
Summary Judgment Issue.
Sec. 270.635 (2), Stats., provides in part as follows:
"The [summary] judgment may be entered in favor of either party, on motion, upon the affidavit of any person who has knowledge thereof, setting forth . . . if on behalf of the defendant, such evidentiary facts, including documents or copies thereof, as shall show that his denials or defenses are sufficient to defeat the plaintiff, together with the affidavit of the moving party, either that he believes that there is no defense to the action or that the action has no merit (as the case may be) unless the opposing party shall, by affidavit or other proof, show facts which the court shall deem sufficient to entitle him to a trial."
Defendant completely ignored the affidavit requirements of the statute and for this reason the trial court properly denied its motion for summary judgment.
Krause v. Western Casualty Surety Co. (1958), 3 Wis.2d 61, 65, 66, 87 N.W.2d 875; Fuller v. General Accident Fire Life Assur. Corp. (1937), 224 Wis. 603, 610, 272 N.W. 839.
If defendant had filed an affidavit, which was defective in failing to state evidentiary facts or to aver that the action had no merit, defendant would have been entitled to leave to renew its motion upon affidavits which complied with the statute. Inasmuch, however, that defendant filed no affidavit at all, he was not entitled to such leave as a matter of right.
Krause v. Western Casualty Surety Co., supra, footnote 1, at page 66; Townsend v. La Crosse Trailer Corp. (1950), 256 Wis. 609, 613, 614, 42 N.W.2d 164; Fuller v. Accident Fire Life Assur. Corp., supra, footnote 1, at page 611.
By not filing any affidavit, defendant apparently took the position it was entitled to a judgment on the pleadings. However, a motion for summary judgment is not the same as, or analogous, to, a motion for judgment on the pleadings. Furthermore, an order denying a motion for judgment on the pleadings is not appealable.
Fuller v. Accident Fire Life Assur. Corp., supra, footnote 1, at pages 611, 612.
St. Patrick's Congregation v. Home Ins. Co. (1898), 101 Wis. 155, 76 N.W. 1125. See also Szuska v. Milwaukee (1961), 15 Wis.2d 241, 244, 112 N.W.2d 699; Comment, 1947 Wis. L. Rev., 422.
Appealability of Second Order.
Defendant predicated its motion for review to the trial court on sec. 269.46 (3), Stats., which provides:
"All judgments and court orders may be reviewed by the court at any time within 60 days from service of notice of entry thereof, but not later than 60 days after the end of the term of entry thereof."
An order refusing to modify or vacate a previous order is not an appealable order. It is not a final order, within sec. 274.33 (1), Stats., because it does not prevent a judgment from which an appeal may be taken. Also, it is not an appealable nonfinal order within sec. 274.33 (3). In Smith v. Shawano County the court held that an order denying a motion to modify findings of fact and conclusions of law was not an appealable order for the same reasons.
"An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken."
"When an order grants, refuses, continues or modifies a provisional remedy or grants, refuses, modifies or dissolves an injunction, sets aside or dismisses a writ of attachment, grants a new trial or sustains or overrules a demurrer, decides a question of jurisdiction, grants or denies a motion for stay of proceeding under s. 262.19, determines an issue submitted under s. 263.225, or denies an application for summary judgment, but no order of the circuit court shall be considered appealable which simply reverses or affirms an order of the civil court of Milwaukee county, unless the order of the civil court grants, refuses, continues, modifies or dissolves a provisional remedy or injunction."
(1890), 77 Wis. 672, 47 N.W. 95.
By the Court. — Order of February 20, 1967, affirmed; the appeal from the order of May 1, 1967, dismissed.