Dempsey v. National Surety Co.

Eschweiler, J. The following are rules of this.court: “Rule 31. If neither side of a cause is submitted or presented when reached for argument, it will be dismissed or continued, in the discretion of the court. “Rule 32. When a cause is submitted or presented by counsel for appellant or plaintiff in error, but not by the op [299] posing party, the judgment or order appealed from may be reversed as of course, without argument. “Rule 33. When a cause is submitted or presented by counsel for the respondent or defendant in error, but not by the opposing party, the judgment or order appealed from will be affirmed as of course, without argument.” Since the adoption of such rules, sec. 8, ch. 219, Laws 1915, which provided as to appeals to this court, created a new statute, sec. 3049a, the part material for consideration here reading as follows: “. . . In any case the respondent may have a review of the rulings of. which he complains by serving upon the appellant .any time before the case is set down for_ hearing in the supreme court a notice stating in what respect he asks for a review, reversal or modification of any part of the judgment or order appealed’ from.” Prior to the adoption of the above cited statute it was an appellant alone who presented by his notice of appeal the matters which were to be reviewed in this court. Under our rules as originally framed to meet such a situation, an appeal being regularly reached, the appellant appearing and the respondent in default, the appellant was entitled to have, under Rule 32, supra; the thatter appealed'from reversed as óf' course without "argument and' with' the "same effect as though heard, and all questions raised by appellant decided in his favor. Such was the procedure recognized in the following cases: Butts v: Fenelon, 38 Wis. 664; Hughes v. Libby, 42 Wis. 639; Oma v. Wilkinson, 129 Wis. 119, 108 N. W. 210. If it Was the appellant, however, who was in default, the respondent' appearing • and • so -requesting, the determination of the tfial "'court'was then affirmed as of course arid withóút argument under Rule 33;supra: Although there'appear tó be no-decisions'in our Reports directly passing upon'-'this particular rule; the'practice thereunder has been uniform and ás stated. ’ - ■ ■ ' It is evident that the legislative purpose of that portion [300] of sec. 3049a, Stats., above quoted, is to place a respondent who seeks here to have reviewed other parts or portions of any order, judgment, or record brought here by his opponent’s appeal in the same situation, so far as all questions of relief to be afforded him in this court are concerned, as though such respondent were an appellant himself by formal appeal as to such portions of the record in the court below thus sought to be reviewed. Under this statute the original appellant is, as to the matters sought to be reviewed by respondent, “an opposing part}'-” -within the plain intent of Rules 32 and 33, supra. While it is apparent that under this section the respondent may obtain a review of the record as to matters of which he complains without any statutory requirement as to the furnishing of an undertaking or bond to secure the opposing party as to costs, yet that cannot properly be held to lessen his rights or minimize his position as against an opposing party. The right to an appeal and the conditions upon wdiich it may be taken are matters entirely within the legislative discretion. Filer & Stowell Co. v. C., M. & St. P. R. Co. 161 Wis. 591, 594, 155. N. W. 118; Harrigan v. Gilchrist, 121 Wis. 127, 215, 99. N. W. 909, and cases there cited. We therefore hold that where a party to a record in a court below is brought here by an appeal taken by his opponent, upon giving due notice under the above quoted section of his desire to have specified rulings of the lower court reviewed he is to be considered as an appellant so far as matters he seeks to have reviewed are concerned. Then when a situation arises such as we have before us, of the original appellant failing to appear, and the opposing party, the respondent here, appearing, then, under Rule 32, supra, such respondent is entitled, within the discretion. of this .court, to have, as against the opposing party, the original appellant, so much of the judgment or order so sought to be reviewed by respondent reversed as of course upon the merits- and without argument. It is here so ordered. [301] By the Court. — The parts of the order of the circuit court sought to be reviewed by respondent under its notice of April 6, 1920, are reversed, and the cause remanded for further proceedings in accordance herewith.