Wujcik v. Globe & Rutgers Fire Insurance

Stevens, J. The appellant insurance company presents two questions on this appeal: First. That the trial court erred in refusing to set aside the judgment against the appellant and to grant a new trial. Second. That the trial court erred in sustaining the demurrer of the local agent, Wrzosek, to the cross-complaint of the appellant insurance company and in granting judgment dismissing appellant's cross-complaint. First. Appellant’s brief presents the merits of the issue between the plaintiff and the appellant. But upon oral argument, counsel for appellant stated that, as between plaintiff and appellant, the only question presented is whether the trial court erred in not granting a new trial. Even if appellant sought a review upon the merits, it would be of no avail because no bill of exceptions was settled incorporating the proof which is essential to such a review. In reviewing the order denying the new trial, the court has considered the depositions as a part of the original papers used on the motion for a new trial which are to be returned with the order from which the appeal is taken. Sec. 274.13 of the Statutes. This order is supported by the presumption of regularity that attends all judicial proceedings. The record abundantly supports the presumption that the trial court considered the depositions as evidence of the [370] facts which the testimony in the case would tend to establish if a new trial was granted and determined that, if all the facts which these depositions tend to establish were true, the case presented nothing but issues of law which the trial court determined adversely to the contentions of the appellant. After an examination of the entire record and of the legal propositions urged by appellant we reach the conclusion that there were no issues of fact for the jury and that the issues of law were correctly determined. The procedure adopted by the trial court gave the appellant an opportunity to as fully litigate all questions of fact and of law as if it had appeared at the trial or as if a new trial had been granted. The testimony of every witness that is shown to have any knowledge of the facts was taken and considered by the court. The trial court is to be commended for the care which it exercised to protect the interests of appellant. The appellant was in no position to ask such consideration of the court as it in fact received. It was not entitled to relief because of mistake, inadvertence, surprise, or excusable neglect. Notice of trial in this case was served on counsel for appellant eighteen days before this case was heard as a default and a week before counsel who had charge of this case entered upon the trial of the case in federal court, in which counsel was occupied when this case was reached for trial. Counsel is a member of a firm of able lawyers. An examination of the record satisfies the court that the case is one that could have been prepared for trial and tried when it was called for trial by another member of the firm representing the appellant. Under such circumstances conflicting trial engagements of counsel do not entitle parties to a continuance. The administration of justice cannot be stayed because of such conflicting engagements, where it is apparent that other members of a firm of lawyers representing the party asking the continuance can fully protect the interests of their client. The situation is very different [371] from that which arises when, without previous knowledge of the possibility of conflicting trial engagements, counsel is called upon to care for the rights of clients in two different courts at the same time, with no opportunity for other counsel to prepare to properly present either of the cases to the court. Courts and parties litigant cannot await the convenience of counsel who make no greater effort to aid in the prompt disposal of cases than was done in the case at bar. Second. The record does not disclose the grounds upon which the trial court sustained the demurrer of the defendant Wrzosek to the cross-complaint of the appellant. Counsel for defendant Wrzosek seeks to sustain the order on the ground that the matter alleged in the cross-complaint was not pleadable as a cross-complaint under sec. 263.15 of the Statutes. This position is undoubtedly well taken, because the claim which the appellant makes against defendant Wrzosek does not involve or in any manner affect the contract-of insurance which is the subject matter of this action. The situation presented is one that comes clearly within the provisions of sec. 260.19, because appellant asserts that, if it is held liable to the plaintiff,-it will have a right of action against defendant Wrzosek to recover of him any sum which it may be held liable to pay to plaintiff because, as it alleges, its liability will be “wholly due to the failure and neglect of said Joseph Wrzosek to perform his duties as agent” of the appellant. Secs. 263.15 and 260.19 apply to entirely different situations. Sec.-263.15 grants a right which can be exercised without leave of court by a party defendant whenever the case comes within the terms of the statute. Sec. 260.19 does not confer a right. It grants a privilege which may be exercised only when the court in its discretion permits the exercise of such privilege. Fisher v. Milwaukee E. R. & L. Co. 173 Wis. 57, 62, 180 N. W. 269; Ertel v. Milwaukee E. R. & L. Co. 164 Wis. 380, 386, 160 N. W. 263. [372] There are undoubtedly cases where the granting of the privilege provided for by sec. 260.19 may work a hardship on a plaintiff who is obliged to await the determination of the issues raised between the two defendants in which he may have, no interest. But the plaintiff is in no position to complain in this case. By making the defendant Wrzosek a party, plaintiff placed the appellant in a position where it had a right to have this issue determined in this action. Appellant’s cross-complaint states a cause of action against the defendant Wrzosek which was properly pleadable as a cross-complaint in this action. By the Court. — The order denying the motion for a new trial is affirmed. The judgment is affirmed, except in so far as it dismisses appellant’s cross-complaint against defendant Wrzosek. Upon the latter issue the judgment is reversed and the cause is remanded for further proceedings.