author: Currie, C. J.

text:
    Estate of Michaels: Michaels, Appellant, v. Kruke, Administrator w.w.a., and another, Respondents.

      January 6 —
    February 2, 1965.

      For the appellant there was a brief by Runkel & Runkel of Port Washington, and oral argument by Paul Runkel.

    For the respondents there was a brief by Erwin N. Pauly, attorney, and John J. Kircher of counsel, both of Port Washington, joined in by Leo Schlaefer and Schloemer & Merriam, all of West Bend, and oral argument by Mr. Pauly.

   Currie, C. J.

The facts of this case make it unique among the many joint bank account cases which have come before this court.

The account was originally opened in the State Bank of Newburg on September 8, 1942, in the names of Walter Michaels or Helen Michaels with a deposit of $500. The record does not disclose the source of this $500 deposit. At- that time there were two Walter Michaels. One was the husband of Helen and the other the sixteen-year old son of Walter, Sr., and his wife, Helen. Walter, Sr., and Helen resided and operated a tavern in the unincorporated village of Waubeka in Ozaukee county which is some six to eight miles distant from Newburg. Walter, Sr., died October 25, 1944. At the time of his death there was $508.77 on deposit in the joint savings account. His estate was probated in the county court of Ozaukee county and there also was a separate termination of joint-tenancy proceeding with respect to certain property he had owned in joint tenancy with Helen. The joint savings account is not referred to in either the estate or joint-tenancy proceeding. Nevertheless, we think the reasonable inference is that the Walter named as one of the two depositors when the original savings account was opened was Walter, Sr., and not Walter, Jr. There are two reasons for this: First, Walter, Jr., was then but sixteen years old and the record discloses no reason why at that time he should have been preferred over his three brothers and one sister, all of whom were older than he. Secondly, the name Walter precedes that of Helen in the bank passbook which is more consistent with Walter being the husband rather than the minor son of the codepositor, Helen.

Some time after the original opening of the account, “Jr-’’ was written after the name of Walter in both the passbook and on the bank’s ledger sheet. The reason that we conclude it was done after the opening of the account is because it is written with ink of a lighter color than the original words “Walter or Helen Michaels.” The record is silent as to when this change was made. Thereafter, the word “Can-celled” was written in ink across “Walter Jr.” in the passbook and “Cancelled” was also written in ink slightly below and to the left of “Walter Jr.” A small arrow was also drawn in ink after this second “Cancelled” pointing toward the cancelation of “Walter Jr.” Isselman, an officer of the bank, testified that the writing of the words “Cancelled” and the drawing of the arrow were done by him and that he made these changes in the passbook on December 16, 1950. He could not recall the incident but “presumed” it was done at the request of Helen Michaels. At the same time three horizontal lines were drawn through the name “Walter Jr.” on the bank’s ledger sheet and the word “Cancelled” was written in ink below and to the left thereof together with the date “12/16/50” and an arrow was drawn after the word “Cancelled” pointing to the “Walter Jr.” with the three horizontal lines drawn through it.

Thereafter, the words “or Harry Michaels” were written in ink in the passbook below “Helen Michaels.” Harry is the son of Helen Michaels, and the brother of Walter, Jr. Mrs. Johnson, daughter of Isselman, testified that she was employed in the bank only in 1951 and 1952 and that these words “or Harry Michaels” were in her handwriting. She could not recall whether the stamped words appearing below “or Harry Michaels” which read, “A joint and several account payable to either or the survivor,” were placed there by her but presumed they were and that her father was the one who told her to do so. However, Mrs. Johnson did not add any name on the bank ledger sheet covering this account. Thus ever since December 16, 1950, the bank ledger sheets named only Helen Michaels as the depositor. This we deem to be immaterial because the passbook constituted the contract between the depositor and the bank; the ledger sheet was merely the private record of the bank. Isselman testified that bank employees always had been instructed to have the two records (passbook and ledger sheet) correspond.

At the conclusion of the taking of testimony at the hearing Judge Larson stated:

“I would like the attorneys to look at Exhibit, Harry Michaels’ Exhibit No. 1 [the passbook] and ask whether it does not look to them as though this book had on the page bearing the names of the owners the names Walter or Helen Michaels. That later a ‘Jr-’ was written behind Walter. That after that the word ‘cancelled’ was written across ‘Walter’ and ‘Jr.’ and the word ‘Harry Michaels’ added to the book.”

Counsel for the administrator with the will annexed and for Walter Michaels, Jr., both agreed with this interpretation of the exhibit, while counsel for Harry Michaels stated he refused to speculate on the sequence of events.

Both Walter, Jr., and Harry testified that they did not learn of the existence of the account until after their mother’s death. The passbook was found in a little safe in the tavern at Waubeka which Helen operated from the time’ of her husband’s death in 1944 until her own death in 1961. All deposits and withdrawals after the death of Walter, Sr., had been made by Helen. Walter, Jr., married September 16, 19S0, and then left his mother’s home which was in the first story of the tavern premises. Harry, who is eleven years older than Walter, Jr., had married in 1943 but lived upstairs in the tavern premises until 1957. There is testimony that Walter, Jr.’s, wife had at least one serious quarrel with Helen Michaels. Thus Walter, Jr.’s, marriage and leaving his mother’s home, and possibly also the quarrel between his wife and mother, provide an explanation of why Helen had Walter, Jr.’s, name removed from the passbook as a joint payee on December 16, 1950.

Harry testified that during the years he lived upstairs in the tavern premises he helped tend bar, cut the grass, and took his mother to the doctor and dentist. When asked whether he helped out at the tavern he replied, “Quite a bit. The most,” which apparently meant that he helped out more than Walter, Jr., or his other brothers and sister. The public administrator was present in person at the hearing and asked Harry this question and received this answer:

"Q. Mr. Michaels, did your mother ever tell you about setting up this bank account for you? A. Well what she said is that she says I’m going to get more. Every time I go over to West Bend to the foot doctor because I usually took her once or twice a week. But I never knew she had any money in the bank book in Newburg.”

Walter, Jr., testified that he also helped tend bar for his mother in the tavern and took her to the doctor and to Milwaukee. Helen Michaels died testate leaving a will dated January 28, 1958, which was duly admitted to probate. All of her estate except a $200 bequest for Masses was bequeathed by the residuary clause which reads:

“Because of the extra services rendered to me by my sons Harry Michaels and Walter Michaels, I give, devise and bequeath to each of them one-third (%) of .the residue of my estate, and the remaining one-third I divide equally among all of my children, to-wit: John Michaels, Harry Michaels, William Michaels, Walter Michaels, Jr., and Frances Michaels Witte.”

The total appraised value of her estate, exclusive of the bank account in question, is slightly in excess of $33,500.

The foregoing constitutes a summary of all the evidence which we consider of possible materiality on the issue of whether the administrator with the will annexed or Harry, as the survivor of the two joint payees named in the bank passbook, is entitled to the account. We now turn to the applicable statutes, case-law authorities, and writings of experts in the field, to determine whether the result below must be affirmed or reversed.

The only applicable statute is sec. 221.45, Stats., which provides:

“When a deposit has been made or shall hereafter be made, in any bank, trust company bank or mutual savings bank, transacting business in this state in the names of- 2 persons, payable to either, or payable to eithér or the survivor, such deposit, or any part thereof, or any interest or dividend thereon, may be paid to either of said persons whether the other be living or not; and the receipt or acquittance of the person so paid shall be a valid and sufficient release and discharge to the bank for any payment so made.”

Estate of Staver (1935), 218 Wis. 114, 260 N. W. 655, is generally regarded as the landmark decision by this court in the field of joint bank accounts. That case broke sharply with prior decisions which had applied concepts of traditional joint-tenancy law and of the law governing the creation of gifts. The opinion flatly stated (at p. 120) : “No question of transfer from the depositor, to the intended donee is in any manner involved.” The rationale of the decision was that the survivor donee payee succeeded to the account by reason- of the contract between the donor depositor and the bank as implemented by sec. 221.45, Stats. Among the cases cited in support of the adoption of this contract theory were Chippendale v. North Adams Savings Bank (1916), 222 Mass. 499, 111 N. E. 371, and Battles v. Millbury Savings Bank (1924), 250 Mass. 180, 145 N. E. 55.

Of particular applicability to the instant case are these further statements made in Estate of Staver (at pp. 122, 124),:

“The legal title being in the survivor, it would be necessary to show by clear and satisfactory evidence a conscientious duty upon the part of the survivor to hold the title in trust for another. In the absence of such a showing the complete ownership must be held to be in the survivor.
“The legal ownership of instruments and the incidents of such ownership should generally depend upon their terms, leaving it to a court of equity to impose on the holder of the legal title such equitable obligations as the law of trusts warrants.”

Estate of Staver was a most carefully considered and well-drafted opinion. This is evident from the comment made a few months later in Schwanke v. Garlt (1935), 219 Wis. 367, 370, 263 N. W. 176, that Estate of Staver “was decided only after it had been considered in several conferences and had been given unusually careful consideration.”

Estate of Staver, supra, holds legal title to a joint bank account is in the survivor donee payee upon the death of the donor depositor subject to equity imposing a trust upon the holder as the law of trusts warrants upon proof “by clear and satisfactory evidence.” A logical and natural development of this theory would be to hold that a rebuttable presumption exists that the donor depositor intended the right of survivorship, which presumption can only be rebutted by clear and satisfactory evidence. This development found impression in Estate of Pfeifer (1957), 1 Wis. (2d) 609, 612, 613, 85 N. W. (2d) 370, wherein the court stated:

“Although the form of the account is not conclusive, as we said in the cases, supra, an account opened in joint names raises a rebuttable presumption that the creator of such an account intended the usual rights incident to jointly owned property, such as rights of survivorship, to attach to it. Evidence showing a different intent, for instance that the joint names were adopted for convenience without the intent of conferring ownership, may serve to prove agency or trusteeship in the third party in respect to the account but in the absence of such evidence, which must be clear and satisfactory, the presumption that the depositor intended the usual incidents of jointly held property when he opened a joint account is sufficient to support a finding to that effect (Emphasis supplied.)

Later cases which have restated this same rule of a presumption which can only be rebutted by cleár and satisfactory evidence are Estate of Kemmerer (1962), 16 Wis. (2d) 480, 488, 489, 114 N. W. (2d) 803, and Estate of Roth (1964), 25 Wis. (2d) 528, 533, 131 N. W. (2d) 286. These and other joint-bank-account cases decided by this court subsequent to Estate of Staver, supra, make it clear that evidence of the intent of the donor depositor is the controlling factor, provided, however, that it be clear and convincing.

In the instant case there is no direct evidence, such as statements made to the bank employees or to others by Helen Michaels, of the intent which motivated the changes she made in the savings account subsequent to her husband’s death. The fact that she at all times retained possession of the passbook, and did not disclose its existence to Walter, Jr., and Harry, gives rise to either or both of two reasonable inferences. One is that she did not intend anyone but herself to have any right to make withdrawals from this account. The other is that she wanted to have the right to change or remove the name of any donee payee at will. However, it would be indulging in pure speculation to assume that, because she wished to retain this tight control over the account during her lifetime, she did not intend to be applicable the stamped and conspicuous survivorship provision appearing in the heading of the passbook immediately following the names of herself and Harry.

Her will made in 1958, in which she treated both Walter, Jr., and Harry alike, is some evidence that she did not then intend Harry should be preferred over Walter, Jr. However, she had made no further deposits in the account subsequent to September 12, 1952. It is the intent she had at the time she added Harry’s name as a joint payee with right of sur-vivorship which is controlling. There is no evidence of expressed intent that the account be not governed by the deposit agreement with the bank.

It is our considered judgment that no clear and convincing evidence was adduced in this record which would rebut the presumption of survivorship arising from the deposit contract with the bank as implemented by sec. 221.45, Stats. Legal title to the account passed to Harry upon his mother’s death, and there exists no basis upon which a court can impress a constructive trust upon him in favor of the estate of his mother, Helen Michaels.

The county court found and determined that Harry was named as a joint codepositor for the convenience of Helen Michaels. A good illustration of a joint savings account created for the convenience of the depositor whose money constituted the source of the deposits is presented by Plainse v. Engle (1952), 262 Wis. 506, 56 N. W. (2d) 89, 57 N. W. (2d) 586. There a father placed money in a joint bank account in the names of himself and daughter. The evidence established that this was done pursuant to an understanding between father and daughter that, if he got ill and needed a lot of medical attention, she would be able to withdraw money for such purpose. The father became mentally incompetent, and it was held that the joint account had been created solely for convenience and, therefore, the father’s guardian was entitled to the account.

In Estate of Kemmerer, supra, the nature of a joint bank account for convenience was accurately characterized as one whereby an agency is created. This court therein declared (16 Wis. (2d) at p. 488):

“A joint account may give rise to an agency for what is sometimes called the joint account for the convenience of the depositor. In such a case, the nondepositor has the power to withdraw for the benefit of the depositing owner but no rights of survivorship are intended. Plainse v. Engle (1952), 262 Wis. 506, 56 N. W. (2d) 89, 57 N. W. (2d) 586; Schwanke v. Garlt (1935), 219 Wis. 367, 263 N. W. 176.”

Professor Richard W. Effland, Estate Planning: Co-Ownership, 1958 Wisconsin Law Review, 507, 519, likewise characterizes a joint bank account for convenience as a “true agency.”

In the instant case there is no direct evidence that Helen Michaels in 1951 or 1952 had the bank add Harry’s name to the account as a joint payee with the right of survivorship so as to enable Harry to make withdrawals for her at some future time. This occurred nine or ten years before her death and she continued active in the management of her tavern business up until the week of her death. Under the evidence here presented it is possible to surmise that she may have had Harry’s name added as a joint payee so that if she did become incapacitated at some future time he would be able to make withdrawals for her benefit. It is equally tenable to assume that because Harry was then rendering assistance to her in the tavern and about the premises that she had his name added so that he would receive the account upon her death as a reward for his services. Mere surmise and theorizing of possibilities falls far short of constituting the clear and convincing evidence required as a condition for equity imposing a trust to defeat Harry’s legal title to the account as the surviving copayee.

One further issue should be explored and resolved: Whether the attempted creation of survivorship rights in Harry constituted an invalid testamentary disposition of property by Helen Michaels. There is no prior decision of this court since the enactment of sec. 221.45, Stats., which has directly passed on the question of whether the deposit of money by a donor depositor in a joint bank account, with the intention' that the named donee payee is to have no right to make withdrawals during the lifetime of the donor depositor, violates our Statute of Wills, sec. 238.06, Stats.

In Zander v. Holly (1957), 1 Wis. (2d) 300, 84 N. W. (2d) 87, a donor depositor created two joint savings accounts in the names of herself and her niece. It was understood between them that the niece was to have no right to withdraw during the lifetime of the aunt. Subsequently the aunt withdrew all the funds from both accounts, and this court upheld the aunt’s right so to' do. Later this court in Estate of Kemmerer, supra, summarized this holding as follows (16 Wis. (2d) at p. 488):

“In Zander v. Holly (1957), 1 Wis. (2d) 300, 84 N. W. (2d) 87, a joint account was created which was construed to reserve to the depositor, an aunt, the complete right of withdrawal of the funds in the joint account created with her niece, but that the niece should have whatever remained in the account by survivorship.”

From this it could be reasonably argued that by implication this court in Zander v. Holly, supra, had upheld the validity of the survivorship feature of a joint bank account where the intention was that the donee payee have no right of withdrawal during the lifetime of the donor depositor. However, because the point here under consideration was not directly raised in that case, we deem it inadvisable to consider that this case is necessarily controlled by the holding of the Zander Case.

There can be no denial of the fact that the survivorship feature of a joint bank account is testamentary in character. The fact that these accounts have been termed the “poor man’s will” is an open acknowledgment of this. See In re Edwards' Estate (1932), 140 Or. 431, 436, 14 Pac. (2d) 274; Barbour v. First Citizens Nat. Bank (1957), 77 S. D. 106, 110, 86 N. W. (2d) 526; and Disposition of Bank Accounts: The Poor Man’s Will, 53 Columbia Law Review (1953), 103. Where the donee depositor is intended by the donor depositor to have the right to withdraw during his lifetime, the survivorship feature has posed no problems to the courts since there has been a transfer of a present interest to support the survivorship. Thus the transaction squares with the traditional concepts of inter vivos gifts.

Courts have not been much concerned with the fact that even in such a situation' the donor depositor can defeat the survivorship rights of the donee payee by withdrawing all the funds prior to death. 10 Am. Jur. (2d) Banks, pp. 346-347, sec. 381. It is the situation, where the donor depositor withholds from the donee codepositor any right to withdraw during the lifetime of the donor, which has caused some courts to hold the survivorship feature of the account to be an invalid testamentary disposition. See 10 Am. Jur. (2d) Banks, p. 348, sec. 382.

The decisions of the Massachusetts court on the subject of joint bank accounts are considered “highly persuasive” by this court because Wisconsin adopted the contract theory of joint bank accounts in Estate of Staver, supra, from Massachusetts. Kelberger v. First Federal Savings & Loan Asso. (1955), 270 Wis. 434, 439, 71 N. W. (2d) 257. In Goldston v. Randolph (1936), 293 Mass. 253, 199 N. E. 896, 103 A. L. R. 1117, it was understood between the donor and donee payee that the latter was not to withdraw from the account during the lifetime of the donor. Nevertheless, it was held that there was no invalid testamentary disposition because there was a completed contract to make a present gift. This same reasoning was advanced by the Colorado court in First Nat. Bank v. Mulich (1928), 83 Colo. 518, 266 Pac. 1110. See also Batal v. Buss (1936), 293 Mass. 329, 199 N. E. 750.

The thoughtful analyses of the problems arising in the field of joint bank accounts contained in the article by Professor Richard W. Effland, Estate Planning: Co-Ownership, 1958 Wisconsin Law Review, 507; and those by Professor Kepner, The Joint and Survivorship Bank Account — A Concept Without a Name, 41 California Law Review (1953), 596; and Five More Years of the Joint Bank Account Muddle, 26 University of Chicago Law Review (1959), 376, commend themselves to this court. Both authors advocate that the survivorship feature of these accounts be enforced by the courts even though the surviving donee named as codepositor has had no right of withdrawal during the lifetime of the donor. We quote their views as follows:

“It is submitted that frank judicial recognition of an account which confers no rights during lifetime (or, as to a checking account, rights which are revocable), but carries survivorship rights, is justified, serves the modern policy of carrying out intent, and is no more a violation of the Statute of Wills than presently exists.” Effland, supra, 1958 Wisconsin Law Review, 507, at page 520.
“The fact that the donee cannot make withdrawals may be evidence of the donor’s intention, but it should not be conclusive on the question of whether or not a gift was made. The joint bank account gift is actually not intended to be a donation of an unrestricted right to make withdrawals, but is a present gift of the balance of the account, with the donee’s enjoyment postponed until the donor’s death. It is intended to be a form of a testamentary disposition of property in that the gift is not perfected until the donor’s death. The. gift should not be invalidated because the donee cannot make withdrawals.” Kepner, supra, 26 University of Chicago Law Review (1959), 376, at page 388.

However, in order for this court to achieve this socially desirable result here and not overrule Tucker v. Simrow (1946), 248 Wis. 143, 21 N. W. (2d) 252, it will be necessary to ground it upon sec. 221.45, Stats., rather than the contract between Helen Michaels and the bank. In the Tucker Case, the owner of a savings account and a checking account signed a written direction to the bank that, upon her death, the bank pay one half of these accounts to the depositor’s husband, and one fourth thereof to each of her two children. The bank accepted this written direction and it became part of the deposit contract. Both the trial court and this court held that there was an ineffective testamentary disposition. The court distinguished Estate of Staver, supra, on the ground that in the latter case a present interest had been created in the person alleged to be a joint tenant while in the Tucker Case the depositor had retained complete control until death. We deem a better basis for distinguishing the two cases to be that in the one there existed a statute which vested legal title to the account in the named surviving donee depositor while in the other there is no such statute covering bank accounts standing in the sole name of the depositor but payable on death to another. Young v. McCoy (1950), 152 Neb. 138, 40 N. W. (2d) 540, is in accord with Tucker v. Simrow, supra. See also Kepner, 41 California Law Review (1953), 596, at page 615.

This court has on occasion stated that sec. 221.45, Stats., was enacted for the protection of the banks and does not determine the rights of the named payees of a joint bank account as between themselves. Estate of Schley (1955), 271 Wis. 74, 80, 72 N. W. (2d) 767, and Estate of Kemmerer, supra, at page 488. This does not mean, however, that this statute may not be pertinent on the issue of whether the attempted conferral of survivorship rights on the surviving donee payee is an ineffective testamentary disposition. It is this statute which implements the deposit contract and causes legal title to vest in the survivor payee even though equity in a proper case may intervene to impress a trust against such survivor payee. The passing of legal title is irreconcilable with the concept that such an attempted transfer is an ineffective testamentary disposition because of failure to comply with the requirements of the Statute of Wills. Thus it necessarily follows that sec. 221.45 is a statutory exception to sec. 238.06, the same as is sec. 215.14, which we were called upon to construe in Estate of Fucela, post, p. 476, 132 N. W. (2d) 553.

We summarize our determination of the issues in this appeal as follows: Legal title to the joint bank savings account passed to appellant Harry Michaels upon the death of Helen Michaels. There is insufficient evidence of a contrary intent on the part of Helen Michaels to permit equity to impress a trust against Harry in favor of her estate. The reservation by Helen of full control over the account during her lifetime, thus excluding Harry from any right of withdrawal, did not invalidate the survivorship feature of the joint account so as to make it an ineffective testamentary disposition.

The joint bank account is a comparatively new device in the long development of the law. While the joint payees of such account are termed joint tenants for lack of a better terminology, the account has different attributes than a true joint tenancy. Such an account provides a useful technique for transferring property, and need not fit any of the historical and traditional property concepts associated with the law of inter vivos gifts and joint tenancy. It would be a mistake to ignore the deposit contract and the intent of the parties in order to apply such concepts.

By the Court. — Order reversed, and cause remanded for further proceedings consistent with this opinion.

        Boehmer v. Boehmer (1953), 264 Wis. 15, 19, 20, 58 N. W. (2d) 411, recognizes that sec. 221.45, Stats., is what effectuates the deposit agreement.


source: Caselaw Access Project

author: Fairchild, J.

license: Public Domain

text:
    National Farmers Union Property & Casualty Company, Plaintifff and Respondent, v. Maca (Louis L.), Defendant: Maca (Robert), Defendant and Appellant.

      January 6 —
    February 2, 1965.

      For the appellant there was a brief and oral argument by James C. McKenzie of La Crosse.
    For the respondent there was a brief by Moen, Sheehan & Meyer and L. E. Sheehan, all of La Crosse, and oral argument by L. E. Sheehan.

   Fairchild, J.

1. Does Robert Maca have an interest sufficient to permit him to appeal from the judgment? Plaintiff insurance company argues that Robert has no interest in the. policy, cannot maintain an action thereon against plaintiff, and is not a party aggrieved by the judgment.

Under Condition 7 of the policy, Robert would, however, be entitled to recover under the policy after first securing a judgment determining Louis’ liability to him. Plaintiff does not claim that the declaration of no coverage in the judgment binds Robert only with respect to his claim for medical payments, nor that he was originally joined as a defendant only on that account. Should he recover judgment against his father and then bring action against the company, the judgment now before us would bar his action. The judgment affects his interest to that extent, and.he has standing to appeal.

2. The exclusions. Coverage A is designated “Farm and Personal Liability” and includes liability for bodily injury. The policy does not apply, under Coverage A to bodily injury to “employees of an insured.” Since Robert has so clearly characterized himself in his complaint in the personal-injury action as an employee of Louis with respect to the event out of which he claims liability arose, the provision just quoted would seem to exclude such liability from Coverage A, and focus attention only on Coverage C. Coverage C is designated “Employer’s Liability” and includes liability for bodily injury sustained by an employee of the named insured and arising out of and in the course of employment during the prosecution of farming operations.

Plaintiff apparently has not been satisfied to take the position that Robert was an employee and therefor that any liability was excluded from Coverage A, but has taken the position that one of two other exclusions control.

The policy does not apply under Coverage A to bodily injury to “any insured within the meaning of parts (a), (b), (c) and (d) of the definition of insured.” Part (b) of the definition of insured includes the spouse of the named insured and “the relatives of either ... if such . . . relative ... is a resident of the household of the named insured. . . .” Plaintiff insurance company claims that Robert is a resident of Louis’ household, and, being Louis’ son, would therefore have the protection of being an insured under the policy, but that any liability to him for bodily injury is excluded from Coverage A. Robert concedes he was living in Louis’ home, but contends he was not “resident” because he did not intend to remain permanently.

Assuming that Robert was an employee, and his injury arose out of and in the course of his employment during the course of farming operations, Coverage C would apply, but for an exclusion. The policy provides that it does not apply under Coverage C “to the named insured, spouse and members of his or her family related by blood, marriage or adoption . . . unless they are listed in the declarations as employees.” Robert was not so listed. Plaintiff claims he was a member of Louis’ family, and thus excluded from Coverage C. Robert says he was not a member of the family.

Expressions similar to the two involved in this case— “resident of the household” and “member of the family” —commonly appear in insurance policies, although in several different contexts. Courts have frequently decided that they do or do not cover the facts of a particular relationship, but it is difficult to deduce any general rules. Here one of the expressions is used both in a definition of insured and an exclusion from coverage, so that in one case a broad interpretation would be against the insurer and a narrow one in its, favor, while in another case, the opposite would be true.

Although it is logical to expect that when one uses different descriptions in-one written instrument one intends to describe different things, we fail to find any significant difference between the two expressions, at least as they relate to the facts and issues of the present case. As we stated in Lontkowski v. Ignarski:

“ ‘Household’ is defined by Webster as ‘those who dwell under the same roof and compose a family.’ That definition corresponds with the common and approved usage of the term and is supported by judicial authority. ‘Persons who dwell together as a family constitute a “household.” ’ Arthur v. Morgan (1884), 112 U. S. 495, 499, 5 Sup. Ct. 241, 243, 28 L. Ed. 825.
“On the evidence in the- present record the trial court could properly find that the young men, Donald and Joseph, were dwelling with their parents as a family under one roof, and hence were members of the same household. The facts that each brother was a little more than twenty-one years old, had a job, and paid something for room and board, either in money or work, did not require a finding that they were not living in the house as members of the same family. . .

The expressions, “resident of household,” “member of family,” and the like appear (as in this case) in provisions excluding from coverage liability for injury to persons standing in such relationship to the named insured. The purpose has been explained as “to exempt the insurer from liability to those persons to whom the insured, on account of close family ties, would be apt to be partial in case of injury.” Such expressions also appear in automobile theft policies, excepting from coverage theft through acts of a member of insured’s household. The exception is provided in view of the fact that persons sustaining such relationship to the insured have liberal authority to take possession of and operate-motor vehicles of the insured, and unlimited opportunity for theft of such vehicles. They appear in' automobile liability policies in so-called “drive-other-car” provisions, excluding liability arising out of the use of other automobiles owned, hired, or regularly used by a member of the insured’s household. The purpose is to avoid coverage of several vehicles owned by members of the same family, who, by their close intimacy, might be expected to use each other’s cars without hindrance and with or without permission. Such expressions appear, as in this case, in definitions of additional insureds. The purpose is to provide protection for those whom, because of close relationship, a person obtaining a liability insurance policy would ordinarily want it to protect.

Although the purposes differ, these expressions are used in all cases to describe a common type of close relationship, varying greatly in detail, where people live together as a family in a closely knit group, usually because of close relationship by blood, marriage, or adoption and deal with each other intimately, informally, and not at arm’s length. The intention of the members as to the duration of the relationship would seem to be important in only two respects. The intended duration should be sufficient so as not to be inconsistent with the intimacy of the relationship, and also long enough so that it is reasonable to expect the parties to take the relationship into consideration in contracting about such matters as insurance or in their conduct in reliance thereon.

3. Have the evidentiary facts' presented by plaintiff conclusively established that Robert was a resident of Louis’ household and a member of his family, under the policy provisions? Plaintiff’s burden, on motion for summary judgment, is to present such evidentiary facts as shall establish its cause of action sufficiently to entitle it to judgment. Plaintiff relied largely on depositions of Robert and Louis, its adversaries, in which they described their relationship. The Macas did not attempt to show other facts. Therefore the test is whether plaintiff sustained its burden, but we must interpret the testimony and draw all reasonable inferences in favor of the Macas. Judge Roraff applied this test in effect when he said that in his opinion a finding of a jury that Robert was not a resident of the household nor a member of the family could not be sustained.

The depositions are lengthy, and we shall endeavor to eliminate immaterial details in summarizing the facts.

Robert was raised on his father’s farm in Iowa. In 1949 he married and established a home. He was divorced, but continued to live apart from his parents. They moved to Wisconsin. In December, 1960, he lost his job in Iowa as a postal employee. In the next few months, he looked for work in Wisconsin, and visited his parents. In May, 1961, Robert brought his belongings to Louis’ farm and stayed there until after his accident in October. He set up his own bed in an upstairs room, but did not unpack the rest of his furniture. He had no living quarters elsewhere. He obtained a job at the Veterans’ Hospital at Tomah, a few miles from' the farm. This was a permanent position, although subject to a one-year probationary period. He desired, however, to find other employment, and sought postal and other jobs elsewhere. He inquired about living accommodations in the locations where he looked for work. He did not pay board, but was to be paid for work he occasionally did on the farm. He had the use of his father’s car if desired and brought friends home at times. He ate his meals at home until he began to work, and after that ate breakfast and lunch at work and ate supper at home when he wanted to.

Robert and Louis spoke of the situation as temporary and Robert continued to plan to get work elsewhere and to move if he got it. The relationship had continued for five months before the accident, and although Robert was still hoping and trying to get a different job, nothing had materialized.

Robert’s counsel argues that the word “resident” must be construed with the connotation of “domicile,” and cannot apply to one who does not have the present intention to remain. We have so construed the word “resident” where used in certain statutes. The word, however, “is an elastic term which may refer to a temporary sojourner as well as to one possessing a legal domicile.” We think that one is not a resident of the.household or member of the family if, even though he has no other place of abode, he comes under the family roof for a definite short period or for an indefinite period under such circumstances that an early termination is highly probable. If, however, the circumstances of his stay are otherwise consistent with a family or household relationship, and his stay is likely to be of substantial duration, the fact that he attempts to find employment, gaining which he would live elsewhere, would not, in our opinion, prevent his being a resident of the- household or a member of the family. Robert had a job where he apparently could have continued for a long time. His efforts to find other jobs had met with no success. We consider that he was a resident of the household and member of the family under the policy, even under the testimony most favorable to him.

4. Waiver or estoppel. Robert alleged in his answer that Gabower, plaintiff’s agent, informed Louis when he applied for the policy that it would not be necessary to list Robert in the declarations as an employee. Although the answer did not allege that plaintiff was thereby estopped to rely upon, or had waived the exclusion under Coverage C, Robert’s counsel now argues that there was estoppel or waiver. An affidavit by Gabower states that Louis and Gabower talked about Robert; Gabower told Louis that in order to cover claims by Robert, it would be necessary to list him on the policy; that Louis instructed Gabower not to list Robert. No counteraffidavit was filed. Louis Maca testified on adverse examination as follows:

“Q. Mr. Gabower told you if he [Robert] was to be named as an employee or otherwise named in the policy, there would be an additional premium? A. Gabower stated the policy covered all part time labor and being that Robert was employed at the Veterans Administration, even if he helped me he would not be full time man; just part time.
“Q. At the time you made out the application did you have any discussion about Robert being covered in any way, by name? A. No.
“Q. You also understood did you not, that members of the family residing in the household under the terms of the policy could not make claim against you which would be covered by the policy did you not ? A. Yes.”

Gabower’s affidavit, if it stood alone, would defeat any claim that Louis was misled into omitting Robert’s name from the policy. Louis did not testify that Gabower told him Robert would be covered as an employee without being listed. Even if one interpreted Louis’ answer first above quoted as implying such representation, the answer so interpreted would be flatly contradicted by the last two answers above quoted. We do not consider that Louis’ testimony was sufficient to raise a jury issue, and, as has been noted, no counter-affidavit was filed.

S. Counsel for plaintiff suggests that we disregard the brief filed on behalf of appellant Robert Maca and dismiss the appeal because of many violations of our rules. Although we agree that the violations are numerous and flagrant, we have decided the appeal on its merits, awarding plaintiff double costs.

Appellant’s appendix contained only the decision of the trial court. (Actually a portion of the decision was omitted, but that portion relates to the ruling on estoppel and waiver by conduct after the accident, a ruling not challenged on appeal.) The appendix did not contain material portions of the pleadings or judgment to be reviewed. There was no abridgement of the record .except that the various papers were listed by title. The statement of facts contained a great deal of counsel’s interpretation of the facts and a number of seemingly factual statements not supported by the record. References to pages of the record were infrequent and of course there could be no references to pages of the appendix. Some of the comments directed at the decision of the trial judge bordered on disrespect.

By the Court. — Judgment affirmed. Plaintiff-respondent may tax double costs.

       See sec. 269.56 (11), Stats., concerning parties to an action for declaratory relief.

       (1959), 6 Wis. (2d) 561, 565, 95 N. W. (2d) 230.

       Anno. 50 A. L. R. (2d) 120; 12 Couch, Insurance (2d ed.), p. 61, sec. 44:503, and p. 63, sec. 44:509.

        Tomlyanovich v. Tomlyanovich (1953), 239 Minn. 250, 58 N. W. (2d) 855, 50 A. L. R. (2d) 108, 117.

       Anno. 48 A. L. R. (2d) 8, 92.

       Anno. 86 A. L. R. (2d) 937, 941.

         78 A. L. R. (2d) 1404.

       Sec. 270.635 (1), Stats.

        Eau Claire County v. Milwaukee County (1964), 24 Wis. (2d) 292, 128 N. W. (2d) 666; State ex rel. Linarys v. Dorwin (1964), 22 Wis. (2d) 474, 126 N. W. (2d) 49; Carlton v. State Department of Public Welfare (1956), 271 Wis. 465, 468, 74 N. W. (2d) 340.

         Smith v. Whitewater (1947), 251 Wis. 313, 316, 29 N. W. (2d) 37. See 37 Words and Phrases, Resident, pp. 398-434.

       See Megal v. Kohlhardt (1960), 11 Wis. (2d) 70, 82, 103 N. W. (2d) 892, requiring estoppel to be pleaded, and Allstate Ins. Co. v. Moldenhauer (7th Cir. 1952), 193 Fed. (2d) 663, requiring waiver to be pleaded as an affirmative defense.


author: Wilkie, J. Beilfuss, J.

text:
    State, Respondent, v. Conway and wife, Appellants.

      January 7 —
    February 2, 1965.

      For the appellants there were briefs by Conway & Conway of Baraboo, attorneys, and David Bogue of Portage of counsel, and oral argument by Mr. Bogue.

      For the respondent the cause was argued by Roy G. Mita, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
   Wilkie, J.

Two issues are presented on this appeal: (1) Does the circuit court for the county where defendants reside have jurisdiction over an action for specific performance of an option to sell real estate located in another county ?

(2) Did the trial court err in granting summary judgment?

Jurisdiction.

Sec. 261.01 (1), Stats., requires certain suits to be brought in the county where the real property in question is located. Subsections (b), (c), and (d) of sec. 261.01 (1) are definitely inapplicable in this action since they involve partition, foreclosure, and recovery of distrained personal property respectively. The question of whether the circuit court for Sauk county had jurisdiction in the present case turns on whether a specific-performance suit to enforce an option to purchase real estate constitutes an. action “[f]or the recovery of real property, or of an estate or interest therein, or for the determination in any form of such estate or interest,” within the meaning of sec. 261.01 (1) (a). This precise question is one of first impression in this state, but appellants deem the holding in State ex rel. Hammer v. Williams to be broad enough to cover the present facts. In Williams the court said that an action could not be brought in Rusk county to foreclose a mortgage on property situated in Price county. Williams is not controlling, however, since sec.- 261.01 (1) (c) specifically commands that mortgage foreclosure actions be commenced in the county where the land is located. There is no such specific reference to specific-performance actions.

Respondent contends that because the contract (i.e., the option) and not the land is the subject matter of the action, sec. 261.01 (1) (a), Stats., is inapplicable and the suit can be brought in the county where appellants reside pursuant to sec. 261.01 (12). This position is well taken for several reasons. First, to come within the purview of sec. 261.01 (1), this situation could only be covered by the “or for the determination in any form of such estate or interest” language of subsection (a). The “such estate or interest” wording, however, alludes to a previous reference to “estate or interest, therein,” which in turn relates to the “recovery of real property” language. Thus, subsection (a) as a whole keys off of “recovery of real property.” That is, actions for “recovery of real property” or “an estate or interest therein” or “the determination in any form of such estate or interest” must be started in the county where the land lies. The present action is not one for recovery of land, and does not fall within the meaning of sec. 261.01 (1) (a).

Second, the action is to enforce the contract (option), and not to try title to the land. Appellants’ defenses to the granting of the summary judgment are contract defenses. No previous decision of this court declares that an action to enforce an underlying contract must be commenced under sec. 261.01 (1) (a), Stats. The authorities are limited to suits involving the title or possession of land. In addition, the partition, mortgage foreclosure, and recovery of distrained personalty actions' specified in the other subsections of sec. 261.01 (1) involve suits not based on contract.

Third, in this case, the judgment for specific performance does not operate on the land, but upon the person. . The appellants are commanded to perform according to their contract with the respondent. Therefore, it is not an action made local under sec. 261.01 (1), Stats.

We conclude therefore that the circuit court for Sauk county did have jurisdiction over the action for specific performance even though the land covered by the option agreement was all located in Columbia county.

Summary Judgment.

Summary judgment should not be granted where there are substantial issues of fact to be determined, when the evidence on a material issue is in conflict, or when there are permissible inferences from undisputed facts that would permit a different result. Appellants opposed the granting of specific performance on the grounds that they entered into the option only because of misrepresentations made by Deer-wester, the conservation commission employee. Appellant Vaughn Conway claims, in effect, that he was informed that the state was experiencing difficulty in securing neighboring property, and further that he executed the option only in response to Deerwester’s assertions that it would aid the state in acquiring other property. Conway declares that he was not told that at the time options had actually been taken on other property in the area. Finally Conway states that he was given assurance that since the state could not pay an amount for property in excess of the federal appraisal (and the option price was greater) the option would not be exercised. Deerwester denies that he made any of these representations. Thus it is apparent from the pleadings and the affidavits that there is a dispute as to just what transpired during the negotiations for the option. The facts as asserted by each side are inconsistent and wholly irreconcilable.

Respondent, however, urges that since the option contract was unambiguous, the parol-evidence rule prevents the admission of any evidence bearing on the alleged misrepresentation, and that, therefore, summary judgment was properly granted because no issue of fact remained to be determined. But evidence of fraudulent misrepresentation is admissible, not to contradict the written terms of the agreement, but rather to demonstrate that it is invalid because induced by fraud. Appellants’ evidence relating to fraud would thus be admissible, and an issue of fact arises.

Respondent seeks equity. If the Conways’ claims are proven at a trial, respondent will be shown to be a party to an illegal scheme to dupe the neighbors of the Conways into selling their property to the state. Under such circumstances, the state certainly would not be coming into court with clean hands, a requirement it must first satisfy if it is to win the equitable relief it seeks. Appellants make very serious allegations which go directly to the validity of the option. They are entitled to their day in court and a chance to prove their charges.

We cannot leave this case without noting that, while the option was given in June, 1956, action was started by the state in December, 1958. Now, more than six years later trial on the merits still has not been had. Obviously, neither party has been in a hurry. Neither can complain that “justice delayed is justice denied.” Nevertheless, the public has an interest in disposing of cases on crowded court dockets and this interest is undermined whenever it takes so inordinately long to litigate what appears to be a relatively uncomplicated controversy.

By the Court. — Orders and judgment reversed.

Hallows, J., took no part.

Beilfuss, J.

(dissenting). I respectfully dissent from that portion of the majority opinion which holds that the present action is transitory. The reasoning that this is an action on contract, rather than one “for the recovery of real property, or of an estate or interest therein, or for the determination in any form of such estate or interest,” ignores the nature of the relief sought by plaintiff.

An action on an option contract such as the instant one could generate three types of prayers for relief. One could be for damages only — clearly transitory. Another could be for the recovery or possession of the land — clearly local. A third form of relief could be an alternative demand — land or damages, which is local.

We are not at liberty to disregard what plaintiff seeks to recover in this suit, irrespective of the label given to the action. Plaintiff is seeking only to acquire an interest in and possession of real estate. Its right to this land, of course, stems from a contract. In an action to gain title to real estate, if the plaintiff proves its case, refusal of the defendants to convey title will not defeat plaintiff’s right to possession. The court judgment will be sufficient when it is filed in the register of deeds office.

The Cornell University Case, supra, referred to in the majority opinion, does stand for the proposition that ejectment is a local action. However, it should not be overlooked that there is a substantial similarity in the object of relief sought in ejectment actions and the present action. The ultimate goal is the same.

And, while it is true that mortgage actions are governed by a specific statute, the nature of most mortgage actions is a suit upon a contract which gives an alternative right to money damages or a sale of land to satisfy the judgment.

Two early cases bear decisively on the venue issue. In Hackett v. Carter (1875), 38 Wis. 394, the relief sought was that certain deeds be canceled, or that defendant be compelled to reconvey the subject lands to plaintiff. The basis of the action was that there was fraudulent misrepresentation as to certain lands which were to be conveyed in exchange for plaintiffs real estate. It was held that the action related to land and was therefore local. Therefore, the venue was properly laid only in the county where the land was situated.

Burrall v. Eames (1856), 5 Wis. 260, 263, was an action for specific performance of a contract for the sale and conveyance of certain lands. The action was commenced in the county where the subject land was located. Defendant resided in a different county. The court said, “A suit for specific performance, like that of foreclosure, is of a twofold character, partly in personam and partly in rem.’’

There was no statute such as is here at issue. Respecting R. S. 1849, ch. 90, sec. 3, which provided for venue where the defendant resided, the court said:

“. . . but this refers exclusively to personal actions at law, and has no bearing upon the question before us. As, therefore, without any statute or rule of court, by the common usage of courts of chancery, the bill might be filed in cases of this kind, in the county where the land lay, and as there is no statute or rule of court restricting or forbidding this practice, we are of the opinion that the plea to the jurisdiction was insufficient, and should have been overruled. . . .” Burrall v. Eames, supra, at page 263.

Interestingly, following the case there is a note added some years later by Dixon, C. J., upon republication of Vol. 5 of the Wisconsin reports, which sets forth the forerunner of our present statute, enacted subsequent to the Burrall Case, supra. Ch. 91, sec. 2, Laws of 1859.

Our statute was taken from the New York Field Code, ch. 379, sec. 103, Laws of New York, 1848, not materially different than the Wisconsin statutes.

What the majority opinion overlooks is the distinction between an action where title to the real estate is involved and an action where the judgment necessarily involves and requires a change in the title. The latter action must be tried as a local action. See Rothenberg v. Fields (1953), 204 Misc. 86, 118 N. Y. Supp. (2d) 822; Greenberg v. Refined Gas Stations, Inc. (1948), 83 N. Y. Supp. (2d) 761; Nassau Hotel Co. v. Barnett (1914), 164 App. Div. 203, 149 N. Y. Supp. 645. In Grace v. Deepdale, Inc. (1957), 3 App. Div. (2d) 397, 160 N. Y. Supp. (2d) 598, it is said: “While it is true that some cases have assumed, or even held, that an executory real property contract, the rescission of which was being sought, did not affect the title to real property, it is difficult to accept the distinction as a sound one.”

Capobianco v. Romaine (1959), 21 Misc. (2d) 54, 191 N. Y. Supp. (2d) 219, was an action by a purchaser to rescind an executed contract to purchase real property and to impress a purchaser’s lien thereon for the amount of consideration paid. It was held that the action must be tried in the county where the land is situated.

Birmingham v. Squires (1910), 139 App. Div. 129, 123 N. Y. Supp. 906, was an action to rescind an executed contract to the sale of land by defendants to plaintiff, and to recover the consideration paid. It was held that the action affected title and was therefore local. The court said at page 131:

“In the case at bar, however, there can be no recovery without a cancellation of the contract, and, although a cancellation of the deed is not demanded, without its cancellation in a reconveyance plaintiff will not be entitled to recover, and therefore the necessary effect of the judgment demanded is to effect a change of title by the cancellation of the contract and conveyance.”

Hall v. Gilman (1902), 77 App. Div. 464, 79 N. Y. Supp. 307, was an action to enforce specific performance of an agreement to devise lands. It was held that it was proper to bring the action where some of the land was situated, even though some of the other lands affected by the agreement were located without the state.

Kearr v. Bartlett (1888), 54 N. Y. Sup. Ct. (47 Hun) 245, 13 N. Y. St. Rptr. 580, was a suit for specific performance of a contract to exchange lands. The court granted defendant’s application to have the suit removed to the county where defendant’s land was situated.

It is therefore evident that the instant action contemplates a change in title to the real estate and that this is the sole purpose of the action. Venue should be laid in the county wherein the land is situated. The action should be dismissed for want of jurisdiction.

       “261.01 Place of trial. Except as provided in section-220.12 and subject to the provisions for change of venue the proper place of trial of civil actions is as follows:
      “(1) Where Subject of Action Situated. Of an action within one of the four classes next following, the county in which the subject of the action or some part thereof is situated, viz.: (a) For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such estate or interest, or for an injury to real property, (b) For the partition of property, (c) For the foreclosure, redemption or other satisfaction of a mortgage of real property, (d) For the recovery of distrained personal property, except that when personal property is seized in outlying waters under the provisions of section 29.05 then the place of trial shall be in the county in which the seizure of said personal property was made and where said seizure was made at a place where 2 or more counties have common jurisdiction under sections 2.03 and 2.04, then the place of trial may be in either county.”

       (1932), 209 Wis. 541, 245 N. W. 663.

       “261.01 (12) Other Actions. Of any other action, the county in which any defendant resides at the commencement of the action; or if no defendant resides in this state, any county which the plaintiff designates in his complaint.”

        E.g., quiet-title action in McArthur v. Moffet (1910), 143 Wis. 564, 128 N. W. 445.

        E.g., ejectment in Cornell University v. Wisconsin Central R. Co. (1880), 49 Wis. 158, 5 N. W. 329.

       It is true that mortgages are contractual in nature, but at the time the forerunner of sec. 261.01 (1) (c), Stats., was adopted, foreclosures were looked upon as closely akin, if not identical to, quiet-title actions. See Bresnahan v. Bresnahan (1879), 46 Wis. 385, 1 N. W. 39; Osborne, Mortgages (1951 hornbook series), p. 905, sec. 312.

       A divorce decree obtained in one state where jurisdiction is properly obtained may compel one of the parties over which the divorce court has jurisdiction to execute a conveyance of land outside the state, the judgment not operating on the land, but upon the person. See Trowbridge v. Trowbridge (1962), 16 Wis. (2d) 176, 187, 114 N. W. (2d) 129.

        Dells Paper & Pulp Co. v. Willow River Lumber Co. (1919), 170 Wis. 19, 173 N. W. 317.

         Fjeseth v. New York Life Ins. Co. (1961), 14 Wis. (2d) 230, 111 N. W. (2d) 85.

        Institute of Commercial Art v. Maurice (1956), 272 Wis. 499, 76 N. W. (2d) 332; Engel v. Van Den Boogart (1949), 255 Wis. 81, 37 N. W. (2d) 852.

       William Gladstone.

       “Actions for the following causes, must be tried in the county where the cause or some part thereof arose, or in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial, in the cases provided by statute.
      “1. For the recovery of real property or of an estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property;
      “2. For the partition of real property;
      “3. For the foreclosure of a mortgage of real property; . . The present pertinent provisions of the law read; “The place of trial of an action in which the judgment demand would affect the title to, or the possession, use or enjoyment of, real property shall be in the county in which any part of the subject of the action is situated.” C. P. L. R., sec. 507. Formerly C. P. A., 1920, sec. 183; C. C. P., 1876, sec. 982; C. P. (Field Code), 1848, sec. 123. While the Wisconsin statute does not read in terms of the judgment demanded affecting title to property, nevertheless, it would seem clear that the necessary effect of the words in sec. 261.01 (1), Stats., “or for the determination in any form of such estate or interest” is the same.


author: Wilkie, J.

text:
    State ex rel. Elfers, Respondent, v. Olson, Appellant.

      January 7 —
    February 2, 1965.

      For the appellant there was a brief by Heide, Sheldon, Hartley & Thom and W. Scott Thom, all of Kenosha, and oral argument by W. Scott Thom.

    For the respondent there was a brief and oral argument by Gerald T. Flynn of Racine.
   Wilkie, J.

In essence the trial court ruled that, on the facts alleged in the complaint, the assembly action on Resolution 9, A., was an unconstitutional attempt to remove Elfers from the assembly seat he had already taken and not the settlement of a contest over who was the duly elected assemblyman from the second Kenosha district.

Three issues are presented on this appeal:

1. Do the facts alleged in the complaint present a controversy over which the courts have jurisdiction ?
2. In adopting Resolution 9, A., was the assembly attempting (a) the removal of a member, or (b) the settlement of an election contest ?
3. If the resolution was an attempt to settle an election contest, do the courts have jurisdiction to review the assembly’s action ?

Addressing ourselves to these issues, we should first note that, as in State ex rel. La Follette v. Kohler “[w]e are dealing here with laws which operate in the political field, — a field from which courts are inclined to hold aloof, — a field with respect to which the power of the legislature is primary and is limited only by the constitution itself.”

Issue 1. Do the facts alleged in the complaint present a controversy over which the courts have jurisdiction? Sec. 7, art. IV of the Wisconsin constitution provides that, “Each house shall be the judge of the elections, returns and qualifications of its own members; . . .” Appellant contends that the courts have no jurisdiction to review any action by the assembly which settles an election contest involving one of its members.

To reach consideration of this contention it is first necessary to determine whether the complaint does constitute an attempt to achieve court review of an election-contest decision by the assembly. As alleged in the complaint, respondent urges that the assembly action is an attempt to remove a member of the assembly in violation of the express constitutional provisions of sec. 8, art. IV. Since the violation of an express provision of the constitution is asserted by respondent, the courts do have jurisdiction to determine whether or not the facts alleged, and if true, do present a violation of sec. 8, art. IV. The courts have jurisdiction to entertain an action challenging legislative action where it is clear that the legislative action involves an alleged violation of a constitutional requirement. Since the respondent does claim that he was a duly elected and duly seated member of the assembly, and that the assembly action was an attempt to remove him, the courts do have jurisdiction to answer the specific question of whether or not the complaint avers facts which, as a matter of law, make the assembly action no more than an attempt to settle an election contest or whether the assembly action was an attempt to remove a member.

Issue 2. In adopting Resolution 9, A., was the assembly attempting (a) the removal of a member, or (b) the settlement of ah election contest? In resolving this issue there are some additional pertinent facts, all disclosed by official pro ceedings of the 1963 assembly, of which we take judicial notice. The chief clerk of the assembly convened the 1963 session and read the name of Elfers among those whose election had been certified to and by the secretary of state, then announced that an election-contest notice (served on Elfers December 13, 1962) had been filed by Olson with the secretary of state on December 28, 1962, and forwarded to the assembly (January 2, 1963). Elfers then took his oath of office and signed the roll with other members and the 1963 meeting of the assembly was convened. Elfers then received his seat assignment and voted on the organization of the assembly. In the next four weeks Elfers was named to the labor committee, voted in the assembly on five different measures, and was compensated for his services.

Meanwhile the notice of election contest had been referred by the speaker to the standing committee on elections on January 9, 1963. That committee reported Resolution 9, A., for introduction on January 31st.

The only assembly rule pertaining to contested seats provides:

“The Assembly may inquire into a contested election or the qualifications of any person claiming a seat therein, even though the provisions of Section 13.16 of the Statutes have not been complied with. Contestants for seats shall have the privilege of the Assembly until their respective cases are disposed of; such privilege extends only to allowing contestants access to the Chamber during the time occupied in settling the contest.”

As a matter of law, the facts alleged in the complaint as supplemented by those of which we have taken judicial notice clearly establish that the assembly action was taken to resolve a pending contest over the election of the assemblyman from the second district of Kenosha county. They do not establish an attempt to remove an existing member of the assembly. Every action that was taken by the assembly in seating Elfers, assigning him to a committee, permitting him to vote, were all done with notice to all, including the respondent, that Olson’s notice of contest had been received and promptly referred to the assembly elections committee. The appellant certainly had done everything he could to alert the assembly to the fact that he contested the election. Although the rules do not expressly provide that when Elfers took his seat after the chief clerk read the notice of election contest, he did so provisionally with the understanding that his activities as a member were to discontinue if the election contest were resolved against him, nevertheless every action that was taken, by the assembly to permit Elfers to be seated and to act as the assemblyman from the second district of Kenosha county, was taken with open knowledge that the Olson notice of contest had been received and was still pending. As a matter of law, it is clear that under these circumstances Elfers did not achieve the status of a member so that he could assert the provisions of sec. 8, art. IV, which authorizes removal for one of the stated causes and upon a two-thirds vote of all members.

Issue 3. If the resolution was an attempt to settle an election contest, do the courts have jurisdiction to review the assembly’s action? Having determined that the alleged facts do not constitute an attempt by the assembly to remove one of its members but rather an attempt to settle the election contest, the question remains whether, under the facts, the court has any jurisdiction to review the assembly action. As noted, sec. 7, art. IV, does make each house the judge of elections, returns, and qualifications of its own members. There has been no prior case in this court that squarely considers the scope of this constitutional provision or the related question of what review may be had in the courts of any assembly action settling an election contest directed at one of its members. In the case of State ex rel. La Follette v. Kohler, court review was sought of alleged statutory violations which affected the election contest for governor. The court stated:

“By sec. 7 of art. IV it is provided: ‘Each house shall be the judge of the elections, returns and qualifications of its own members ; thus committing jurisdiction to determine the validity of the election of a member of either house to that house. No similar provision respecting other officers is to be found in the constitution.”

In- State ex rel. Anderton v. Kempf the court considered the question of whether there was court jurisdiction of an aldermanic election contest and permitted court review of that contest and in ruling noted that each legislative house was given power under sec. 7 to be the judge of its own elections, returns, and qualifications. At the municipal level the court concluded that the court and the legislature, i.e., the council, had concurrent jurisdiction to decide election contests.

In 1937 the attorney general advised the secretary of state on which contestant for the assembly seat for Waupaca county in the 1936 election should be certified to the assembly as the victor. Alvin A. Handrich had been certified as elected by the county clerk after a recount. His opponent, Edwin E. Russell, contested the election in proceedings in the circuit court for Waupaca county, in which court it was determined that Russell rather than Handrich was the victor. In his opinion, the attorney general referred to the provisions of sec. 7, art. IV, and stated:

“We are, therefore, clearly of the opinion that the circuit court of Waupaca county had no jurisdiction to cancel the certificate of election issued by the county clerk of Waupaca county upon the certification and determination of the board of canvassers dated November 28, 1936.”

The attorney general concluded that Handrich should be certified by the secretary of state to the assembly as the duly elected assemblyman. When the assembly convened, Hand-rich was seated.

In 1913 the attorney general previously opined that “the assembly is the sole judge and the courts have no jurisdiction of the matter” in an election contest where the contestant failed to follow the then existing statutory requirements as to when a notice of contest had to be filed.

We conclude that, under the circumstances, the courts do not have jurisdiction to review the assembly’s action in resolving the Elfers-Olson contest. Under our system of government this is one decision which the constitution leaves to the legislature alone to make. We do not endorse the assembly verdict; neither do we reject it. Under the circumstances this decision, simply, is none of our business. Full responsibility for that decision rests on the legislature. If the people in this assembly district or elsewhere do not like the assembly verdict [awarding the election to Olson by one vote in a total vote of 19,460, with only one vote ruled defective after Elfers had been declared the victor in a total vote of 19,463, by the board of canvassers, first by 13 votes and then by seven votes (with 42 ballots considered defective), and by the circuit court by five votes (with 38 ballots ruled defective)] their recourse is at the polls.

By the Court. — Judgment reversed, cause remanded with instructions to dismiss complaint.

       (1930), 200 Wis. 518, 545, 228 N. W. 895.

       Most recent illustration is State ex rel. Reynolds v. Zimmerman (1964), 22 Wis. (2d) 544, 126 N. W. (2d) 551, in which the court upheld court jurisdiction in. an action alleging that by failing to reapportion the legislature as required by the constitution, a requirement of the constitution had been violated. See also State Bank of Drummond v. Nuesse (1961), 13 Wis. (2d) 74, 108 N. W. (2d) 283, in which the courts had jurisdiction to determine whether certain banking legislation had been properly enacted by the legislature and in conformity with the voting requirements of sec. 4, art. XI, Wisconsin constitution.

       Judicial notice taken of copies of the legislative record from the secretary of state’s office relative to bills which were acted on. State ex rel. Martin v. Barrett (1946), 248 Wis. 621, 22 N. W. (2d) 663.
      Court examination of senate and assembly journals approved, State ex rel. Postel v. Marcus (1915), 160 Wis. 354, 152 N. W. 419.
      “. . . [T]his court has the power to take judicial notice of public records on file in the offices of various state official’s and departments, . . .” State v. Jelco (1957), 1 Wis. (2d) 630, 638b, 85 N. W. (2d) 487, 86 N. W. (2d) 428.
      Currie, Appellate Courts Use of Facts Outside of the Record by Resort to Judicial Notice and Independent Investigation, 1960 Wisconsin Law Review, 39.

       Sec. 13.16, Stats.

       Sec. 13.04, Stats., provides: “The presiding officer of each house, immediately after the commencement of each regular or extra session of the legislature, shall certify to the secretary of state the names of all qualified members of the house over which he presides ; also the number of miles of travel for which each member is entitled to compensation. However, when any seat is contested, and notice of such contest has been filed as provided in section 13.16, no certificate with respect to such seat, or any claimant thereof, shall be issued until the question of the right thereto is finally determined. All such certificates shall be countersigned by the chief clerk.”
      Elfers was compensated through January 31st although he did not have such a certificate as a qualified member of the legislature from the presiding officer. See 52 Op. Atty. Gen. (1963) 17, 19.

       Rule 11, Assembly Manual, adopted 1913, which has remained substantially unchanged and in effect every session since then.

       State Senate Rule 13 similarly provides: “Contestants for seats shall have the privilege of the Senate until their respective cases are disposed of; the privilege to extend only so far as access to the Chamber, during the time occupied in settling the contest.”
      Rule 32 of the Rules of the United States House of Representatives also allows the privilege of the floor to contestants in election cases during the pendency of their cases in the House.

        State ex rel. La Follette v. Kohler, supra, footnote 1, at page 556.

       (1887), 69 Wis. 470, 34 N. W. 226.

       26 Op. Atty. Gen. (1937) 3.

       Id. at page 5.

       1 Op. Atty. Gen. (1913) 259.

       Elfers alleges that three more votes should have been counted, all for him, making Elfers the victor by two votes, in a total vote of 19,463.


author: Beilfuss, J.

text:
    Borkin, Respondent, v. Alexander, Appellant.

      January 7 —
    February 2, 1965.

      For the appellant there were briefs by Whyte, Hirschboeck, Minaban, Harding & Harland, attorneys, and Edward D. Cleveland and Richard C. Ninneman of counsel, all of Milwaukee, and oral argument by Mr. Cleveland and Mr. Ninneman.

    For the respondent there was a brief by Baumblatt & Goodman of Racine, and oral argument by Robert P. Goodman.

   Beilfuss, J.

“The only issue presented by a motion for summary judgment is whether or not there is a substantial issue of fact to be tried. If there is, the motion will be denied. Hintz v. Darling Freight, Inc. (1962), 17 Wis. (2d) 376, 117 N. W. (2d) 271. The power of the courts under the summary-judgment statute is drastic, and should be exercised only when it is plain that there is no substantial issue of fact, or if permissible inference from undisputed facts, to be tried. If the inferences to be drawn from credible evidence are doubtful and uncertain, a motion for summary judgment should be denied. Voysey v. Labisky (1960), 10 Wis. (2d) 274, 277, 103 N. W. (2d) 9.” Bousfield v. Hardware Dealers Mut. Fire Ins. Co. (1964), 24 Wis. (2d) 10, 14, 127 N. W. (2d) 765.

“On summary judgment, if the material facts are not in dispute and if the inferences which may reasonably be drawn from the facts are not doubtful and lead to only one conclusion, then only a matter of law is presented which should be decided upon the motion. Bond v. Harrel (1961), 13 Wis. (2d) 369, 372, 108 N. W. (2d) 552; Rabinovitz v. Travelers Ins. Co. (1960), 11 Wis. (2d) 545, 105 N. W. (2d) 807; Voysey v. Labisky (1960), 10 Wis. (2d) 274, 103 N. W. (2d) 9.” Carothers v. Bauer (1964), 23 Wis. (2d) 15, 23, 126 N.W. (2d) 758.

The plaintiff-respondent, in the brief filed in his behalf, concedes that the oral agreement reduced to writing but not signed is void under sec. 240.08, Stats. He contends that his cause of action is not based upon Exhibit A of the complaint, the unsigned agreement, but upon the original agreement to enter the lease executed in July, 1962.

No affidavits were filed, nor other proof offered in opposition to defendant’s motion for summary judgment. From our examination of the material portions of the record consisting of plaintiffs amended complaint, the defendant’s answer and affidavit in support of the motion, we conclude that there is no substantial issue of fact to be tried and that defendant’s motion for summary judgment dismissing plaintiff’s complaint should be granted.

The amended complaint does not set forth any of the terms or conditions of the written agreement to enter into a lease but instead alleges that the parties orally amended this agreement with respect to the location. The plaintiff does not allege any facts which constitute a breach of the 1962 agreement. On the contrary, his allegation of facts constituting a breach all go to the void oral amendment. Ordinarily the plaintiff’s demand for relief is not considered a part of the alleged cause of action but here all relief demanded is based upon the admittedly void oral amendment.

The affirmative allegations of the defendant’s answer and his affidavit are to the effect that the premises to be rented as agreed to in July of 1962 were leased to a third person, and that the premises and rental were changed. None of these allegations are in any way denied. This state of the record leaves the plaintiff in a position where he alleges no facts, admitted or controverted, upon which he can base a recovery in his favor. The amount of the rental and the premises to be rented are material terms. The plaintiff does not base his cause of action upon rental of the premises described in the written and signed agreement but on different premises described in the void agreement. The un-controverted statement of the defendant is that plaintiff could not rent the premises described in the first agreement because they had been rented to a third person.

The amount of rental and premises to be leased are essential terms which cannot be modified without complying with the statute of frauds.

“In other words, it is claimed that a contract within the statute of frauds can by an oral agreement be validly changed as to a material condition therein. This is not the law. . . . [cases cited] If that could be done it would practically nullify the statute of frauds, for if you had any contract in writing you could make an entirely different one by parol, using the written one as a basis of the change. The result would be that oral contracts preceded by a written one would be valid though quite different therefrom, while wholly oral contracts would be void.” Schaap v. Wolf (1921), 173 Wis. 351, 354, 181 N. W. 214.

We conclude there is no substantial issúe of fact to be tried and that upon the uncontroverted facts the defendant is entitled to judgment.

By the Court. — Order reversed, with directions to enter judgment dismissing the complaint.

         “Contract for lease or sale to be in writing. Every contract for the leasing; for a longer period than one year or for the sale of any lands or any interest in lands shall be void unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom the lease or sale is to be made or by his lawfully authorized agent.”

       See also Gutknecht v. C. A. Lawton Co. (1939), 231 Wis. 413, 285 N. W. 411; Gether v. R. Connor Co. (1928), 196 Wis. 25, 219 N. W. 373.


text:
    Joint School District No. 1, Towns of Waterville, etc., and others, Appellants, v. Joint County School Committee of Buffalo, Dunn, and Pepin Counties, and another, Respondents.

      January 7 —
    February 2, 1965.

      For the appellants there was a brief by Gerald D. Lorge of Bear Creek, and Edgar E. Becker of Appleton, and oral argument by Mr. Becker.

    For the respondents there was a brief by William Wohlfeil of Menomonie, and Fugina, Kostner & Ward of Osseo, and oral argument by La Vern G. Kostner.

   Currie, C. J.

The issue on this appeal is whether the failure to comply with the statutory requirements with respect to service of the notice of hearing upon the clerk of the town of Eau Galle, and the sending to such clerk by registered mail of a certified copy of the Joint Committee’s order, are jurisdictional defects which rendered the order void.

The key statute in resolving the issue with respect to the failure to give notice of the hearing to the town clerk is par. 1 of sub. (1) (d) of sec. 40.025, Stats., which provides:

“(d) Jurisdiction acquired pursuant to par. (a) is lost:
“1. Upon failure of the reorganization authority to substantially comply with the procedural steps required by law to be taken by it prior to the issuance and filing of an order of school district reorganization; . . .” (Italics supplied.)

Other courts define substantial compliance in various ways:

Kasner v. Stanmire (1945), 195 Okla. 80, 82, 155 Pac. (2d) 230:

“We conceive it to be the law that substantial compliance with a statute is not shown unless it is -made to appear that the purpose of the statute is shown to have been served.”

Stasher v. Harger-Haldeman (1962), 58 Cal. (2d) 23, 29, 22 Cal. Rptr. 657, 372 Pac. (2d) 649:

“Substantial compliance, as the phrase is used in the decisions, means actual compliance in respect to the substance essential to every reasonable objective of the statute.”

The Arkansas court in Trussell v. Fish (1941), 202 Ark. 956, 961, 154 S. W. (2d) 587, states that what constitutes “substantial compliance” with a statute is a matter depending on the facts of each particular case.

The apparent objective of the statute in requiring notice to be given to the clerk of each town affected by the reorganization is to allow the towns to protect their interest if any be affected. It is a shield to protect the town and is not a sword available to anyone who desires to attack a reorganization order.

In this case under the facts of the record every reasonable objective of the- statute appears to have been served. The party who did not receive actual notice, the town clerk of Eau Galle, is not complaining here, nor does it appear that the town was in any way prejudiced.

The clerk of the town of Eau Galle testified: When .she receives school-reorganization notices she takes them to the next regular monthly town meeting. She has never called a special meeting for the purpose of discussing a school notice. No special meetings were held in October, 1962. The town held its meeting the first Friday of each month, and, had she received notice of the instant hearing before the Joint Committee, she would have taken it to the next meeting.

The notices were mailed on October 15th. The hearing was held and the order was issued October 29th. Had notice been sent to the clerk of the town of Eau Galle it would not have been presented to the town board until the first Friday in November. Since the notice was published in a local newspaper the members of the town of Eau Galle had constructive notice of the hearing. The clerk regularly receives the newspaper in which the notice of hearing was published.

While there may be situations such as in State ex rel. La Crosse v. Rothwell (1964), 25 Wis. (2d) 228, 130 N. W. (2d) 806, in which a municipality already in a school district may deem it disadvantageous to have additional territory attached to the district, this is not such a case. No municipality already lying within the boundaries of the Durand school district opposed the instant attachment of additional territory to the district. This leads to the inescapable inference that the town of Eau Galle benefited from the attachment.

From all of the foregoing we conclude that the town of Eau Galle was not prejudiced by the Joint Committee’s order of October 29, 1962. Because of this we determine that there was substantial compliance with the notice provisions of sec. 40.025 (2), Stats., and the order was not void because of the failure to have given notice to the clerk of the town of Eau Galle by mail or personal service.

We deem School Board v. State Superintendent (1963), 20 Wis. (2d) 160, 121 N. W. (2d) 900, to be directly in point on this issue of substantial compliance. The parties in that case attempted a school-district reorganization under sec. 40.06 (1) and (2), Stats., by action of the boards of the municipalities in which lay the property to be detached from one district and attached to another. Later the determination of the joint municipal boards was appealed to the state superintendent of public instruction. His decision was attacked on the ground that jurisdiction had been lost by the joint municipal boards because of certain defects in giving notice of the hearing. In rejecting this contention the court stated (at p.178):

“We deplore these statutory notice defects. They should not occur; however, only substantial and not strict compliance with the statutory requirements was necessary in order for the municipal boards to retain jurisdiction. Sec. 40.025 (1) (d) 1, Stats. The failure to comply with the statute in giving notice to the superintendent of Manitowoc county was unintentional, as were the other notice defects. These failures probably caused the absence of two officials from the hearing but their absence was not prejudicial to the cause of the appellants for they prevailed at the hearing by obtaining a rejection of the petition. In view of these circumstances to hold that jurisdiction was lost would be to sacrifice substance for form. In our opinion the statute was substantially complied with, and the municipal boards did not lose jurisdiction.” (Emphasis supplied.)

The instant appellants attempt to distinguish that case from this one on the basis that the former involved a two-step reorganization procedure as distinguished from the instant one-step procedure. Appellants argue that the state superintendent in such two-step procedure exercises de novo jurisdiction, and, therefore, it is immaterial if any defect occurred in giving notice of the hearing before the joint municipal boards. School Board v. State Superintendent, supra, can not be distinguished on this basis because it was grounded on the premise that the state superintendent would lack jurisdiction to proceed if the joint municipal boards had lost jurisdiction before entering their order which was appealed to him.

For a recent school-reorganization case in which this court held there had been substantial compliance under sec. 40.025 (1) (d) 1, Stats., see Joint School Dist. v. Joint County School Comm. (1964), 23 Wis. (2d) 219, 127 N. W. (2d) 258.

The appellants’ second contention that failure to mail a copy of the order to the clerk of the town of Eau Galle vitiated it seems adequately refuted by sec. 40.025 (7), Stats., which reads:

“(7) Failure to Act. Any failure of any officer to perform a mandatory duty imposed upon him by this section shall not affect the validity of any order otherwise lawfully made, but such officer shall be subject to the provisions of s. 946.12.”

By the Court. — Judgment affirmed.


text:
    Hawkins, Plaintiff in error, v. State, Defendant in error.

      January 8 —
    February 2, 1965.

      For the plaintiff in error there was a brief by Chame & Tehan and William E. McCarty, all of Milwaukee, and oral argument by Mr. McCarty.

    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were George Thompson, attorney general, William A. Plats, assistant attorney general, and Hugh O’Connell, district attorney of Milwaukee county.

       Motion for rehearing denied, without costs, on March 30, 1965.

   Fairchild, J.

Hawkins was arrested at his home in Milwaukee on November 3, 1962, at 3 a. m. A search of the premises produced quantities of marijuana and heroin and various items of narcotics paraphernalia. In answer to questions by the police officers Hawkins admitted that the items found were his. Similar admissions were later made at the police station.

Hawkins was represented by counsel at the preliminary hearing and the arraignment. He entered pleas of not guilty to each count. His counsel moved to suppress the evidence seized. After a hearing the circuit court denied the motion stating the opinion that the search was incident to an arrest under warrants then in existence and was legal.

On the date set for trial, and after the impaneling of a jury, Hawkins’ counsel moved for permission to withdraw the pleas of not guilty and substitute therefor pleas of guilty. The court questioned Hawkins so as to determine that he personally desired to change his pleas, informed him of the possible penalties, and then granted the motion.

This particular circuit court follows a practice, upon a plea of guilty, of taking testimony sufficient to make out a prima facie case. One of the detectives who had conducted the search testified. Hawkins then took the stand, apparently for the purpose of presenting facts in mitigation of penalty, but in the course of his testimony stated his pleas were voluntary and admitted a number of material facts. Conviction followed.

By affidavit accompanying the application for permission to withdraw his pleas of guilty, Hawkins alleged that he believed all the evidence obtained in the search had been seized in violation of his constitutional rights; that he would not have pleaded guilty had the motion to suppress been granted; that upon denial of the motion to suppress, his counsel advised pleas of guilty in the hope that a lighter sentence would be imposed; that this was the only reason he pleaded guilty; that he never intended to waive any of his constitutional rights by pleading guilty.

Counsel for Hawkins argues that the arrest was invalid, the search unreasonable, and that his admissions were the fruit of an illegal search. The state vigorously defends the legality of the arrest and the propriety of the search as incidental thereto. The officers had a warrant for the arrest of Hawkins’ wife; they testified that they recognized Hawkins as a person named in other outstanding warrants. They arrested him within the home where they had gone to arrest his wife, and their search followed the arrest. Counsel for Hawkins relies upon various additional facts in attacking the validity of the arrest and search.

But without deciding the controversy over the validity of the search, we conclude that Hawkins, by his plea of guilty, waived his right to litigate that question. Upon his original pleas of not guilty, he had the right to a trial. If convicted by the use of evidence he had moved to suppress, he could have obtained a review by this court of the denial of his motion to suppress. By changing his pleas to guilty, he deliberately rejected that course. He had the advice of counsel who' was aware of the problem, having represented Hawkins on the motion to suppress. Hawkins’ own statements before the circuit court made it clear that the choice was deliberate and that he was aware of the full range of penalties to which he was exposed. He felt, perhaps mistakenly, that pleas of guilty would be advantageous to him by persuading the court to impose a lighter sentence than would have followed a trial. Although he has raised questions as to the validity of the search which can be said to be arguable, invalidity does not clearly appear. We find nothing in the circumstances which would entitle him, as a matter of right, to be relieved of the consequences of his choice, or which would make it an abuse of discretion not to have done so.

The problem presented by this case is not novel. In Bartozek v. State decided in 1925, the defendant had applied for permission to withdraw his plea of guilty on the basis that he had been illegally arrested and that evidence had been obtained by an illegal search and seizure. The trial court denied permission. This court affirmed, stating:

“We may grant that the arrest was unlawful and that the police officer who made the same would be responsible in a civil action for false imprisonment. We may also concede that the liquor thus obtained could not have been received in evidence against the defendant. But these concessions neither discredit nor impeach the action of the court in sentencing the defendant upon his plea of guilty. The defendant had a right to waive his preliminary examination and to plead guilty upon arraignment even though the State did not have in its possession evidence upon which he could have been convicted upon a trial.”

It appears to be the general rule, that a plea of guilty, voluntarily and understanding^ made, constitutes a waiver of non jurisdictional defects and defenses, including claims of violation of constitutional rights prior to the plea. As the plea itself provides the basis for conviction no evidence need be introduced, and the right to a trial free of evidence illegally obtained is forfeited.

Hawkins states that he would not have pleaded guilty but for the evidence in the possession of the police and the denial of his motion to suppress. Because of the causal connection between the alleged violation of his constitutional rights arid his pleas, he contends that the principles just stated are not controlling and that the alleged illegality of the search should vitiate the plea.

In several cases, courts have suggested the plausibility of such a theory. Thus the court of appeals of Maryland has declined to decide whether a plea was a waiver under such circumstances until there had been a determination that the search was in fact unlawful. The United States district court of the northern district of Illinois applied the waiver rule, but criticized it where the plea of guilty was influenced by police possession of evidence illegally obtained. The supreme court of the United States has stated that a plea of guilty may have been the result of a coerced confession, but pointed out that defendant did not have counsel. This decision has been cited in support of the proposition that a plea of guilty does not necessarily eradicate the effect of prior invasions of a defendant’s constitutional rights.

We are of the opinion, however, that a plea of guilty is properly deemed a waiver of the claim of unlawful search and seizure, where, as here, the pleas were voluntarily and understandingly entered by one who had assistance of counsel. The circumstances under which the same would be true if assistance of counsel had been waived need not be delineated here. Perhaps, in practice, the question would be decided in determining whether there has been intelligent waiver. Conceding that Hawkins, who had assistance of counsel, was influenced in his decision to plead guilty by his awareness of the incriminating evidence in the hands of the police and the fact that his motion to suppress had been denied, it does not seem unfair to require that if he wanted to litigate further his claim of unlawful search, he should have continued with his pleas of not guilty.

In a somewhat analogous situation, where the supreme court of the United States denied a defendant’s contention that his second confession was the “fruit” of an earlier confession obtained during a period of illegal detention, the court said:

“Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.”

Hawkins does not claim any infirmity in the judgment if the pleas are permitted to stand.

By the Court. — Judgment and order affirmed.

       (1925), 186 Wis. 644, 646, 203 N. W. 374.

        Mahler v. United States (10th Cir. 1964), 333 Fed. (2d) 472;. Thomas v. United States (9th Cir. 1961), 290 Fed. (2d) 696, certiorari denied 368 U. S. 964, 82 Sup. Ct. 446, 7 L. Ed. (2d) 401; Rivett v. State (Alaska, 1964), 395 Pac. (2d) 264, 267; People v. DeWeese (1963), 27 Ill. (2d) 332, 189 N. E. (2d) 247; State v. Murphy (Ariz. 1964), 396 Pac. (2d) 250.

        Sorenson v. State (1922), 178 Wis. 197, 201, 188 N. W. 622.

       See Dexter v. Crouse (1963), 192 Kan. 151, 386 Pac. (2d) 263; People v. Scott (1963), 29 Ill. (2d) 429, 194 N. E. (2d) 197; Kirkland v. State (D. C. Fla. 1964), 165 So. (2d) 774; People v. Gannaro (1963), 216 Cal. App. (2d) 25, 30 Cal. Rptr. 711, 714; Petition of Ebeling (1963), 143 Mont. 298, 387 Pac. (2d) 302; Poe v. Maxwell (1964), 177 Ohio St. 28, 201 N. E. (2d) 703.

        Gans v. Warden of Maryland Penitentiary (1964), 233 Md. 626, 196 Atl. (2d) 632; Thomas v. Warden of Maryland Penitentiary (1964), 235 Md. 636, 201 Atl. (2d) 495, explained in Ogle v. Warden of Maryland Penitentiary (Md. 1964), 204 Atl. (2d) 179.

         United States v. Pate (D. C. Ill. 1963), 222 Fed. Supp. 998, affirmed 332 Fed. (2d) 531.

         Herman v. Claudy (1956), 350 U. S. 116, 122, 76 Sup. Ct. 223, 100 L. Ed. 126; see also Townsend v. Burke (1948), 334 U. S. 736, 738, 68 Sup. Ct. 1252, 92 L. Ed. 1690.

        United States v. La Vallee (2d Cir. 1963), 318 Fed. (2d) 499; Shelton v. United States (7th Cir. 1961), 292 Fed. (2d) 346, certiorari denied 369 U. S. 877, 82 Sup. Ct. 1149, 8 L. Ed. (2d) 280; Wright v. Dickson (9th Cir. 1964), 336 Fed. (2d) 878; People v. Wilson (1963), 29 Ill. (2d) 82, 193 N. E. (2d) 449, certiorari denied 377 U. S. 955, 84 Sup. Ct. 1634, 12 L. Ed. (2d) 499.

        Pulaski v. State (1964), 23 Wis. (2d) 138, 145, 146, 126 N. W. (2d) 625; Gawantka v. United States (3d Cir. 1964), 327 Fed. (2d) 129, certiorari denied 377 U. S. 969, 84 Sup. Ct. 1650, 12 L. Ed. (2d) 738; Suarez v. United States (1st Cir. 1964), 328 Fed. (2d) 473; Lewis v. United States (D. C. N. Y. 1964), 228 Fed. Supp. 958.

       See Burns v. United States (5th Cir. 1963), 323 Fed. (2d) 269, certiorari denied 376 U. S. 907, 84 Sup. Ct. 660, 11 L. Ed. (2d) 606; People v. Nicholson (1962), 11 N. Y. (2d) 1067, 184 N. E. (2d) 190, 230 N. Y. Supp. (2d) 220, certiorari denied 371 U. S. 929, 83 Sup. Ct. 300, 9 L. Ed. (2d) 237.

        United States v. Bayer (1947), 331 U. S. 532, 67 Sup. Ct. 1394, 91 L. Ed. 1654.

         Id. pages 540, 541.