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Sprangers v. Philippi

Supreme Court of Wisconsin
Oct 5, 1971
190 N.W.2d 136 (Wis. 1971)


No. 195.

Argued September 14, 1971. —

Decided October 5, 1971.

APPEAL from a judgment of the county court of Outagamie county: RAYMOND P. DOHR, Judge. Appeal dismissed.

For the appellants there was a brief and oral argument by John A. Esler of Kaukauna.

For the respondents there was a brief by Bachman, Cummings McIntyre of Appleton, and oral argument by Angus R. McIntyre.

On November 25, 1963, the plaintiffs-respondents (husband and wife), as vendors, entered into a land contract with Eugene Philippi and Darlene Philippi (husband and wife). Under the terms of the contract the vendors sold certain lands, together with the improvements thereon, located in the town of Grand Chute, Outagamie county, for the sum of $20,250, which was to be paid off in monthly installments of $175, due on the first day of each month.

The following clause was inserted in the land contract:

"Failure to make any payments within fifteen days of their due date shall at the option of the sellers, or their legal representatives, heirs and assigns, cause the entire balance of principal and interest to become immediately due and without notice. Acceptance of any payment then and thereafter to become past due shall not constitute a waiver of any of the provisions of this contract."

After default in monthly payments, the respondents informed the appellants that the entire balance was declared due and owing and offered to convey the premises by warranty deed upon receipt of the total amount due under the contract.

On July 18, 1969, the plaintiffs-respondents commenced the present foreclosure action of the land contract.

On January 23, 1970, the trial court rendered a memorandum opinion in which judgment was granted to the plaintiffs-respondents in accordance with the demand of the complaint. Defendants-appellants appeal.

The initial determination to be made in this case is whether there is an appealable judgment or order.

The notice of appeal states it is taken from a judgment. However, there is no judgment of record. The trial court's memorandum decision is an order for judgment.

An order directing the entry of judgment is not an appealable order under sec. 274.33, Stats.; Mitler v. Associated Contractors (1958), 3 Wis.2d 331, 332, 88 N.W.2d 672; Lentz v. Northwestern National Casualty Co. (1963), 19 Wis.2d 569, 120 N.W.2d 722. The reason such an order is not appealable under sec. 274.33 is that it does not prevent a judgment from which an appeal can be taken.

In State ex rel. Hernandez v. McConahey (1969), 42 Wis.2d 468, 471, 167 N.W.2d 412, this court stated:

". . . The duty rests upon counsel to obtain a sufficient order or judgment upon which to predicate an appeal. . . ."

We again urge appellants' counsel to give more attention to the appealability issue on all appeals to this court.

By the Court. — Appeal dismissed.

Summaries of

Sprangers v. Philippi

Supreme Court of Wisconsin
Oct 5, 1971
190 N.W.2d 136 (Wis. 1971)
Case details for

Sprangers v. Philippi

Case Details

Full title:SPRANGERS and wife, Respondents, v. PHILIPPI and wife, Appellants

Court:Supreme Court of Wisconsin

Date published: Oct 5, 1971


190 N.W.2d 136 (Wis. 1971)
190 N.W.2d 136

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