Dr. Shoop Family Medicine Co. v. Schowalter

Wirrsx<ow, J. There can be no question but that the action. of the court appealed from in the case is an order, and not a judgment. It is true that the word “adjudged” is used in the body of the document, but upon close examination we find that all it attempts to do is to deny certain motions for findings and judgment on the ground of lack of jurisdiction. “A judgment is the final determination of the rights of the parties in the action.” Sec. 2882, Stats. 1898. That the order in question is not such a determination seems self-evident. It simply refuses to determine them. Being an order, the question of its appealability, though not debated by the parties, must necessarily be considered, as it is a jurisdictional question. It seems evident that, generally speaking, an order simply refusing to make findings and judgment in plaintiffs favor would not be appealable, because it would not be an order in effect determining the action nor prevent 666 ing a judgment from which an appeal might be taken. Subd. 1, sec. 3069, Stats. 1898. Judgment for the defendant might still he entered notwithstanding the refusal to enter judgment for the plaintiff. In fact, the order might be made for the very reason that judgment for the defendant should be rendered. Where1, however, the order is based upon the ground that the court has no jurisdiction, the situation is entirely different. The effect of the order then is that no judgment can ever be entered. It is in all essential respects similar to an order striking a cause from the calendar on the ground of lack of jurisdiction, which this court has held appealable. Ashland v. Whitcomb, 114 Wis. 99, 89 N. W. 886. The trial court held, upon .the facts presented in the affidavits, and undisputed, that there had been a voluntary settlement by the parties of the entire controversy, and the first question to be considered is whether this conclusion is correct. Of course, the mere act of withdrawing from court money tendered by the opposing party does not of itself constitute a settlement or discharge of a claim. This is well understood. Money so tendered belongs to the party for whose benefit it is paid into court. Fox v. Williams, 92 Wis. 320, 66 N. W. 357; Schnur v. Hickcox, 45 Wis. 200., In the present case the plaintiff had paid into court $50 for the defendant’s benefit, and the defendant had deposited in coitrf a deed of the premises in dispute, not for unconditional delivery to the plaintiff, but only to be delivered on payment by the plaintiff of $175. The plaintiff was not entitled to the deed under the tender except upon condition that it pay this last-named sum. This being the situation, the parties met, and by agreement took both the money and the deed out of the custody of the law. The defendant took the $50, consenting at the same time that the plaintiff might take and keep the conveyance without paying the additional sum which 667 he had demanded in his answer. The plaintiff accepted the-deed, and has ever since retained it. Here was not a mere-withdrawal by one party of money or property deposited in court without condition, hut a voluntary withdrawal by both parties of both deed and money from the court, and an exchange of the same by virtue of a new agreement, whose conditions differed materially from the conditions under which they were held by the court. We cannot but regard this as-a voluntary settlement of the controversy by the parties pending the litigation, and the only remaining question is as to-the effect of the settlement upon the litigation itself. Upon this question the conclusion of the trial court seems to have: been that there was a complete loss of jurisdiction, and- that the action can never be disposed of, but must be left forever hanging between heaven and earth, like Mahomet’s coffin. This was certainly an erroneous idea. Although there was no jurisdiction to try the controversy because the controversy had passed out of existence, still there Was jurisdiction left in the court to dismiss both the complaint and the counterclaim because the controversy had been settled. Where no-controversy exists, a court will -dismiss the action for that very reason. Williams v. Williams, 117 Wis. 125, 94 N. W. 25. So, while the court was right in refusing to make findings and judgment for the plaintiff upon its original cause-of action, it was wrong in holding that there was no jurisdiction in the court to enter any judgment, and wrong in denying the motion to dismiss the counterclaim. Judgment should have been entered dismissing both the complaint and the counterclaim. There could be no costs properly granted to either party upon the dismissal, because both causes of action had been entirely extinguished by the settlement. Except in case of some express statutory provision, an extinguishment of the entire cause of action by settlement -pending the-action with no mention of costs extinguishes the right to668 costs. Geiser T. M. Co. v. Smith, 36 Wis. 295; Two Rivers Mfg. Co. v. Beyer, 74 Wis. 210, 42 N. W. 232; Cernahan v. Chrisler, 107 Wis. 645, 83 N. W. 778. It seems best to reverse tlie entire order and direct the proper judgment. By the Court. — Order reversed, with costs, and action remanded with directions to dismiss the complaint and counterclaim without costs in the trial court.