Bankers Finance Corp. v. Christensen

Rosenberry, J. It is the contention of the defendant in this case that the court had no jurisdiction to set aside the verdict on the 5th day of March, the time within which such action was permitted having expired February 12, 1923, the [400] court having made no order extending the time for cause. Defendant relied upon the provisions of sec. 2878, Stats., the material part of which is as follows: “The judge before whom the issue is tried, may, in his discretion, entertain a motion to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions or because the verdict is contrary to law or contrary tO' evidence, or for excessive or inadequate damages; but such motion if heard upon the minutes must be made and heard within sixty days after the verdict is rendered, unless the court by order shall extend such time for cause.” Failure of the trial court to act within sixty days from the date of the rendition of the verdict deprived the court of jurisdiction to set aside the verdict. Ward v. Smith, 166 Wis. 342, 165 N. W. 299; Notbohm v. Pallange, 168 Wis. 225, 169 N. W. 557, and cases cited. The plaintiff concedes this to be true unless the time was extended or the provisions of the statute were waived by the defendant. It is apparent from the record that the court and both parties proceeded without regard to the effect of this statute. After reciting the facts in regard to the filing of briefs as hereinbefore stated, the court said: “Now, this court didn’t have in mind this particular statute or any other statute at the time he granted permission to the counsel for extension of time in order to file their briefs. This court was under the impression that it was simply a continuing order staying proceedings.” A careful examination of the record does not disclose any order of the court which, by any reasonable construction or interpretation, can be held to be an order extending the time under sec. 2878 for cause shown. The plaintiff further contends that the defendant waived the provisions of the. statute. The defendant filed his briefs within the sixty days. ITe did nothing inconsistent with his right to insist upon a compliance with the statute. Under such circum [401] stances there is no implied waiver. Ward v. Smith, 166 Wis. 342, 165 N. W. 299. The statute was intended to expedite the progress of litigation and to prevent long and unreasonable delays by trial courts in acting upon motions after verdict. While it operates harshly in this case, we are not disposed to adopt a construction which would emasculate it or to further extend the rule relating to implied waiver. By the Court. — Order appealed from is reversed, with directions to enter judgment for defendant on the verdict.