Stevens v. Jacobs

The following opinion was filed October 12, 1937: Fowler, J. The plaintiffs commenced an action against the defendants Carl N. Jacobs, O. P. Schlafer, and several others as directors of a corporation. Trial was had to the court without a jury. Judgment was entered, in favor of all the defendants, dismissing the action on the merits, with costs to the defendants. Two of the four plaintiffs attempted to- appeal from the judgment. The time limited by statute for taking an appeal from a judgment is six months from the entry of the judgment. Sec. 274.01, Stats. Sec. 274.11 (1), Stats., provides that “An appeal is taken by serving a notice of appeal ... on the adverse party and on the clerk of the court in which the judgment ... is entered. ...” The judgment herein involved was entered January 11, 1937. The defendant Schlafer died on February 23, 1937. No notice of appeal was ever served on this defendant or on his executors. His will was admitted to' probate, and executors qualified on March 13, 1937. There was thus ample time to serve a notice of appeal on the executors within the six months’ period allowed in which to take an appeal. The statutes make no provision that the death of a party shall extend the time for appeal, and it has been expressly held that the death of the party adverse to the appellant does not extend such time, Sambs v. Stein, 53 Wis. 569, 11 N. W. 53. — 201 — The words “adverse party” in the appeal statute relative to serving notice above quoted includes each and every party whose interest on the face of the judgment is adverse to the interest of appellant. The headnote to sec. 274.12, Stats., reads: “All parties brought up on appeal.” Although this section does not apply particularly to the bringing up of all parties adversely affected by the judgment, it implies that all parties in any way affected by it should be brought up. The defendant Schlafer was an adverse party, that is, a party adverse to the appellants, the same as any other defendants, and service of notice of appeal on him or his executors was as necessary to make to take an appeal as service on any other. The notice of appeal must be served on every party whose interest is adverse to the interest of appellants. Rogers v. Shove, 98 Wis. 271, 73 N. W. 989; Green Lake County v. Waupaca County, 113 Wis. 425, par. 3, Syl., 89 N. W. 549. It is stated in the opinion in Estate of Sveen, 202 Wis. 573, 575, 232 N. W. 549, that to confer jurisdiction on this court the notice of appeal must be served on every one of the adverse parties. The following cases from other jurisdictions support the proposition that the court is without jurisdiction of an appeal unless the notice of appeal is served on all adverse parties: Thompson v. Newsom, 52 Ind. App. 444, 100 N. E. 772; Thwing v. McDonald, 139 Minn. 157, 165 N. W. 1065; Wasatch Livestock Loan Co. v. Jones, 79 Utah, 352, 10 Pac. (2d) 1070; Fairchild v. Plank, 189 Iowa, 639, 179 N. W. 64. The appellants contend however that, if Schlafer’s executors are necessary parties to the appeal, sec. 274.12, Stats., affords a means of getting them here. The basis of this claim is a sentence in the middle of that section which reads: “The supreme court may by order at any time after an appeal is taken bring in additional parties ... to the appeal, and in such case the . . . parties so brought in shall be given an opportunity to be heard before final judgment is pronounced — 202 — in said court.” The provision quoted covers the matter of appeals by other parties desiring to appeal where one party adversely affected by a judgment has duly appealed and the others have not. It does not apply to a party in whose favor the judgment was rendered and whose interests are in nowise adversely affected by it. Such a party has no reason or ground for appeal. The provision relied on refers only to appellants, not at all to respondents. It therefore does not apply to the defendant Schlafer or his executors and affords no means of now making the latter parties to the appeal. The appellants also contend that they did not desire to include the executors of Schlafer in their appeal, but say they are now willing to make service upon them if the court considers that such service is necessary, and urge that the court has power under sec. 274.32, Stats., to authorize them to serve the notice of appeal upon them now. They make no motion that the court exercise the power they urge it has, but desire the court to exercise it if it deems the service necessary. Sec. 274.32, Stats., reads: “When a party shall in good faith give notice of appeal and shall omit, through mistake or accident, to do any other act necessary to perfect the appeal or make it effectual or to stay proceedings, the court from which the appeal is taken or the presiding judge thereof, or the supreme court or one of the justices thereof, may permit an amendment or the proper act to be done, on such terms as may be just.” The language of the statute above italicized indicates that the meaning of the statute is that where “notice of appeal” has in good faith been “given,” and any other act necessary to perfect the appeal has been omitted through mistake or accident, this court may permit an amendment to any defective paper, or permit the act omitted that is necessary to “perfect the appeal” to be done. The “any other act” which the court may permit to be done is any act other than service of notice of appeal. Service of notice of appeal is an abso — 203 — lute prerequisite of appeal. It constitutes the appeal. We recently held in Estate of Fish, 200 Wis. 61, 63, 227 N. W. 272, where an appeal from a county court judgment had not been taken within the time therefor prescribed by statute, we were without jurisdiction to entertain it, and the parties could not confer jurisdiction upon us by stipulation or failure to object. Attention should perhaps be called to a statement in the opinion in Estate of Sveen, supra, in which reference to sec. 269.51, a statute similar to sec. 274.32, that where an appeal has been attempted in good faith “this court has power ‘in its discretion to allow any defect or omission in the notice, undertaking or other appeal papers to be supplied, and with . . . the same effect as if the appeal had been originally properly taken.’ ” We are of opinion that the language of this statute does not reach the matter of serving a notice of appeal that has not been'served within the statutory period. To give it that effect would be to give to the court the power to extend the time for taking an appeal, and that the court may not do. For more particular discussion of the powers of the court under sec. 274.32, Stats., see opinion in the case of Wenzel & Henoch Construction Co. v. Wauwatosa, ante, p. 10, 275 N. W. 552. The contention of appellants that sec. 274.32 gives power to this court to relieve them from their failure to serve the notice of appeal on the executors of Schlafer might properly be disposed of by pointing out that that section only gives power to the court to act when an attempt has been made “in good faith” to take an appeal. The appellants can hardly be considered as having attempted “in good faith” to have made proper service on Schlafer or his executors. They say in their brief upon the motion to dismiss: “While appellants have never had any desire to include the deceased O. P. Schlafer’s estate in further prosecution of the appeal,” etc. This certainly does not — 204 — imply any attempt to get service on the executors. Their attention was pointedly called on May 19th to the fact that the counsel upon whom the notice of appeal was served did not accept service for Schlafer. Service of notice was then accepted for all other defendants. This was sufficient to apprise appellants, if not of Schlafer’s death, of the fact that service was not accepted in his behalf, and to indicate that further action must be taken in respect of serving notice upon him. At the time acceptance of service on Schlafer was refused, the executors had been appointed. Two months’ time remained in which to serve the executors had the appellants “desired” to serve them. They had “no desire” to serve them. They were indifferent as to whether they should be brought into the appeal or not. Indifference toward service cannot be construed into a good-faith attempt to make service. Attention of the legislature should perhaps be called to a circumstance which would defeat an appeal attempted in good faith which it might properly make provision against in the future. A person has six months in which to serve his notice. Suppose he intends to serve his notice within the last few days of the period. There are several adverse parties or only one for that matter. On the day before the appellant is to serve his notice of appeal one of the adverse parties or'the only one dies. There is then no one upon whom he may make service. The authority of the attorney to act for ■the»deceased party expires with his death. Appointment of aiV executor or administrator cannot possibly be made within the few remaining days of the period. The appellant has had no notice of impending or likelihood of the death. He is-.thus prevented without fault on his part from taking an appeal, however meritorious an appeal might.be. The legis-laturé might very properly provide, as is done by sec. 330.34, Stats., in relation to commencement of actions in case of — 205 — death. But provisions for appeal are for the legislature to make. The court cannot supply remedial legislation. By the Court. The appeal is dismissed, with $25 motion costs to respondents. The following opinion was filed December 7, 1937: