From Casetext: Smarter Legal Research

Herman Andrae Electrical Co. v. Packard Plaza

Supreme Court of Wisconsin
Mar 6, 1962
113 N.W.2d 567 (Wis. 1962)


February 5, 1962 —

March 6, 1962.

APPEAL from an order of the circuit court for Milwaukee county: MYRON L. GORDON, Circuit Judge. Dismissed.

For the appellants there was a brief by Charles L. Goldberg and Francis X. Krembs, both of Milwaukee, and oral argument by Mr. Krembs.

For the respondent there was a brief by Puls Puls of Milwaukee, and oral argument by C. Morse Puls.

Action by plaintiff Herman Andrae Electrical Company against defendant Packard Plaza, Inc., for the foreclosure of a mechanic's lien. Plaintiff's lien claim arose from an agreement between the parties whereby plaintiff was to perform certain electrical work and furnish the necessary materials and supplies and defendant Packard was to pay the reasonable value thereof.

At the time of this action plaintiff had performed the work agreed upon and rendered a bill for $84,284.77, defendant Packard had paid $70,000 on account, and the parties were in disagreement as to the reasonable value of plaintiff's services and materials. Plaintiff filed the lien in the amount of $14,284.77 against certain real estate owned by defendant Packard upon which plaintiff's efforts and materials had been expended. Defendant Packard answered by denying plaintiff's claim and then counterclaimed for $8,000, alleging that the reasonable value of the labor and materials was $62,000. American Automobile Insurance Company was joined as a defendant because it was the surety on the undertaking filed by defendant Packard for release of the lien.

Upon demand, plaintiff filed an extensive bill of particulars itemizing the total bill in detail in three categories, the summary of which is as follows:

Material . . . . . . . . . . . . . . . . . . . . . . . . . $36,728.02 Labor . . . . . . . . . . . . . . . . . . . . . . . . . . . 42,964.57 Miscellaneous Items . . . . . . . . . . . . . . . . . . . . 4,592.18 ------------ Total . . . . . . . . . . . . . . . . . . . . . . . $84,284.77 The breakdown of the "Miscellaneous Items" category disclosed that it covered cartage, mileage, freight, costs of electrical permits, insurance, trucking, use of an aerial ladder, and two minor items paid to subcontractors.

Two pretrial conferences were held that resulted in the following stipulation:

"That the issue of this case is to be submitted to a panel of referees, and the parties agree to be bound by the referees' conclusion, and by that they understand that a judgment will be entered based on the referees' conclusions, that is, by majority vote of the referees' conclusions, unless the decision of the referees can be shown to be tainted by fraud or otherwise shocks the conscience of the court."

It was further stipulated that each party was to appoint and pay one referee, and the third was to be appointed by the trial court, his fee to be shared equally by the parties. The trial court phrased the "ultimate issue for resolution" by the referees to be: "What was the fair market value of the labor reasonably necessary to effect the installation of the materials set forth in plaintiff's bill of particulars at the time of the work in question?" The parties, through counsel, agreed to this statement of the issue for the referees. Defendant Packard's counsel further stipulated that his client would accept as reasonable the charges for materials as set forth in the bill of particulars, and expressly waived the defense that plaintiff's lien was improperly filed.

The referees reported back to the trial court that "the fair market value of the labor reasonably necessary to effect the installation of the materials set forth in the plaintiff's bill of particulars at the time of the work in question is $38,519.67 based upon 9,021 hours of labor at a rate of $4.27 per hour."

Defendants moved for judgment on the report of the referees and in accordance with the stipulation of the parties. Plaintiff objected to this motion on the ground that the sum of $4,592.18 for miscellaneous items was omitted and that this amount should be included in the judgment along with the stipulation as to material and the finding as to labor. The trial court concluded that inadvertently the entire controversy had not been disposed of by the stipulation and the reference to the referees, and entered an order on March 10, 1961, providing that the action be brought on for a trial "limited to the consideration of defendants' liability to plaintiff for the `Miscellaneous Items' . . ."

Defendants moved for a review of this order and filed an affidavit of their referee to the effect that he had considered the miscellaneous items in arriving at his conclusion. On May 9, 1961, the trial court reaffirmed its order of March 10, 1961. Defendants have appealed from the March 10th order.

We are satisfied that the order appealed from does not fall within any of the categories of appealable orders set forth in sec. 274.33, Stats. This requires that the appeal be dismissed.

This statute provides:
"APPEALABLE ORDERS. The following orders when made by the court may be appealed to the supreme court:
"(1) 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.
"(2) A final order affecting a substantial right made in special proceedings, without regard to whether the proceedings involve new or old rights, remedies, or proceedings and whether or not the right to appeal is given by the statute which created the right, remedy, or proceedings, or made upon a summary application in an action after judgment.
"(3) 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 sec. 262.19, determines an issue submitted under sec. 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.
"(4) Orders made by the court vacating or refusing to set aside orders made at chambers, where an appeal might have been taken in case the order so made at chambers had been made by the court in the first instance. For the purpose of appealing from an order either party may require the order to be entered by the clerk of record."

The instant order clearly is not embraced within those orders made appealable by subs. (1), (3), and (4) of the statute. Even if a reference proceeding is considered a special proceeding, this order would not be appealable under sub. (2) of the statute because it is not a "final order" within the meaning of that subsection. This court has stated that the test to determine whether an order is a "final order" is its effect on the rights of the parties. If an order closes the matter and precludes further hearing and investigation it is final; but an order which does not completely dispose of the subject matter and settle the rights of the parties is not final. Willing v. Porter (1954), 266 Wis. 428, 63 N.W.2d 729; A. J. Straus Paying Agency v. Caswell Building Co. (1938), 227 Wis. 353, 277 N.W. 648.

Defendant Packard's counsel, when interrogated on argument about the appealability of the order, placed reliance upon sec. 270.35, Stats. This statute specifies the action which the trial court is empowered to take, upon filing of the referees' report, in these words: ". . . the court may review such report and on motion enter judgment thereon or set aside, alter, or modify the same and enter judgment upon the same so altered or modified, and may require the referees to amend their report when necessary." The only provision of this statute relating to appeal reads: "The judgment so entered by the court may be appealed from to the appellate court in like manner as from judgments in other cases, and the report of the referees may be incorporated with the bill of exceptions." However, sec. 270.35 contains no provision authorizing appeal from an intermediate order such as the one here before us.

The order appealed from clearly contemplates that after the circuit court has determined upon trial whether defendant Packard is indebted to plaintiff for any of the amounts set forth under the heading "Miscellaneous Items" in the bill of particulars, a final judgment will be entered determining the total indebtedness of defendant Packard to plaintiff. Included therein will be the amount of $38,519.67 for labor as found in the referees' report. By an appeal from this judgment defendant Packard can then raise the issue it attempted to raise here. Because the order here appealed from is a nonappealable intermediate order, this court has no jurisdiction to entertain the appeal. Mitler v. Associated Contractors (1958), 3 Wis.2d 331, 333, 88 N.W.2d 672.

By the Court. — Appeal dismissed.

GORDON, J., took no part.

Summaries of

Herman Andrae Electrical Co. v. Packard Plaza

Supreme Court of Wisconsin
Mar 6, 1962
113 N.W.2d 567 (Wis. 1962)
Case details for

Herman Andrae Electrical Co. v. Packard Plaza

Case Details


Court:Supreme Court of Wisconsin

Date published: Mar 6, 1962


113 N.W.2d 567 (Wis. 1962)
113 N.W.2d 567

Citing Cases

Wittke v. State ex Rel. Smith

Most important, Antes' holding of appealability arises from a determination that, where an alleged error of…

State v. Antes

"(a) Final order or judgment adverse to the state made before jeopardy has attached or after waiver thereof."…