text:
    Wilmot Union High School District, Appellant, v. Rothwell, State Superintendent of Public Instruction, Respondent.

      March 4

    March 30, 1965.

      For the appellant there was a brief by Kelly & Richter and Robert T. Richter, all of Burlington, and Heide, Sheldon, Hartley & Thom and William A. Sheldon, all of Kenosha, and oral argument by William A. Sheldon.

    For the respondent the cause was argued by Harold H. Persons, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
   Currie, C. J.

The appeal to defendant state superintendent by the 22 aggrieved electors of the area sought to be attached was taken fifty-seven days after the denial of the petition by the municipal boards and seventy-six days after the filing of such petition. The issue before us is whether the appeal to defendant was taken within the time prescribed by statute for taking such an appeal. If the appeal to defendant was not timely taken, defendant had no jurisdiction and the order he entered is void.

Sub. (3) (a) of sec. 40.06, Stats., is the controlling statute which prescribes the time within which appeals are to be taken by aggrieved persons where there has been either action or nonaction by municipal boards with respect to a petition filed seeking a detachment of territory from one district and attachment of it to another district. This statute provides as follows:

“Any person aggrieved by an order made under this section may appeal to the state superintendent within 30 days following the date of mailing of such order as provided in sec. 40.025 (5). If action adverse to the making of an order of reorganization is taken by town or village boards or city councils, whether acting alone or jointly, at or following a hearing upon a petition for such reorganization, any person aggrieved by such adverse action may appeal to the state superintendent within 30 days following the date of such action. If no order of reorganization is filed within 60 days after the filing of a petition therefor any person aggrieved may appeal to the state superintendent within 90 days after the filing of the petition and such appeal may be taken notwithstanding any other provision for appeal in this paragraph.”

From the legislative history we conclude that the legislature intended a direct correlation between the above-quoted statutory provision, which fixes the time limits for appeal, and the provisions of sec. 40.025 (1) (d), Stats., which prescribes the duration which the boards, as a reorganization authority, retain jurisdiction, and of the period of preemption which precludes the initiation of any other reorganization proceeding. It seems obvious that the legislature intended this pre-emption to continue until the time for appeal, as prescribed in sec. 40.06 (3), has expired.

The material legislative history of these statutes is this: Prior to 1957, the provision limiting time for appeal to the state superintendent, when reorganization was sought by petition to municipal boards, was to be found in sub. (5) (a), sec. 40.06, Stats. Ch. 536, Laws of 1957, enacted sec. 40.025 as an entirely new section and at the same time renumbered sub. (5) of sec. 40.06 as sub. (3) and amended it to read as it now does.

The provisions of sec. 40.025 (1) (d), Stats., pertinent to this appeal are:

“Jurisdiction acquired pursuant to par. (a) is lost: . . .
“2. Upon the making of an order denying the reorganization proposed by a petition or a resolution, provided that until the expiration of 30 days after the mailing, as provided in sub. (5), of such an order made by town or village boards or city councils, acting alone or jointly, which denies a reorganization proposed by a petition, no other reorganization order shall be made and no other reorganization proceedings commenced, pertaining to all or any part of the territory included in said proposed reorganization, and any such other order made or other proceeding commenced is void ;
“3. Upon taking of formal action denying the reorganization proposed by a petition or a resolution and the failure to make and file, as required by sub. (5), an order to such effect within 10 days after such action, provided that until the expiration of 30 days following the date of such action by town or village boards or city councils, acting alone or jointly, which denies a reorganization proposed by a petition, no other reorganization order shall be made and no other reorganization proceedings commenced, pertaining to all or any part of the territory included in said proposed reorganization, and any such other order made or other reorganization proceeding commenced, is void; . . .
“6a. Upon failure of town or village boards, or city councils, acting alone or jointly, to make an order of reorganization within 60 days following the filing of a petition therefor, provided that until the expiration of 90 days after the date of the filing of such petition no other reorganization order shall be made and no other reorganization proceeding commenced, pertaining to all or any part of the territory included in the reorganization proposed by such petition, and any such other order made or other reorganization proceeding commenced, is void; . . .”

Under the statutory construction which we adopt, par. 2 of sec. 40.025 (1) (d), Stats., dovetails with the first sentence of sec. 40.06 (3), viz., “(a) Any person aggrieved by an order made under this section may appeal to the state superintendent within 30 days following the date of mailing of such order as provided in s. 40.025 (5).” Likewise par. 3 of sec. 40.025 (1) (d) is keyed to the second sentence of sec. 40.06 (3), viz., “If action adverse to the making of an order of reorganization is taken by town or village boards or city councils, whether acting alone or jointly, at or following a hearing upon a petition for such reorganization, any person aggrieved by such adverse action may appeal to the state superintendent within 30 days following the date of such action.” Similarly par. 6a of sec. 40.025 (1) (d) is correlated with the third sentence of sec. 40.06 (3), viz., “If no order of reorganization is filed within 60 days after the filing of a petition therefor any person aggrieved may appeal to the state superintendent within 90 days after the filing of the petition and such appeal may be taken notwithstanding any other provision for appeal in this paragraph.”

The facts of the instant case fall in the category covered by par. 3 of sec. 40.025 (1) (d), Stats. Formal action was taken at the hearing of December 13, 1961, on the petition filed November 24, 1961, when the 12 boards voted nine to three to deny the petition. Not only was no order denying the petition filed within ten days of such action, but none could be because sub. (2) of sec. 40.06 requires that a majority of each of the 13 boards concur in the action taken as a condition precedent to the making of a valid order. The boards lost their jurisdiction on January 12, 1962, thirty days after such formal action taken at the hearing of December 13, 1961, and likewise by the express provision of the second sentence of sec. 40.06 (3) the appeal period expired at the end of this thirty-day period.

The attorney general contends that notwithstanding the appeal limitation period set forth in the second sentence of sec. 40.06 (3), Stats., the third sentence of this subsection had the effect of extending the appeal period to February 22, 1962, or ninety days after the filing of the petition on November 24, 1961. However, such a construction of sec. 40.06 (3) would not only render superfluous the thirty-day limitation period provided by the second sentence of the subsection, but would also render superfluous par. 3 of sec. 40.025 (1) (d). One of the cardinal rules of statutory construction is that the statute should be construed so as to give effect to every part of it. Worachek v. Stephenson Town School Dist. (1955), 270 Wis. 116, 122, 70 N. W. (2d) 657; Greenebaum v. Department of Taxation (1957), 1 Wis. (2d) 234, 238, 83 N. W. (2d) 682; 82 C. J. S., Statutes, p. 705, sec. 346.

A construction, which makes sense in light of this rule of construction and the necessity of correlating the provisions of sec. 40.025 (1) (d), Stats., with those of sec. 40.06, is that the third sentence of the latter is construed to refer to a situation where there has been neither formal action by any of the municipal boards denying the petition nor the filing of a valid order of reorganization. We adopt this construction.

We have experimented with other possible constructions. The only other one which would not offend the canon against superfluity is to construe “action” in the second sentence of sec. 40.06 (3), Stats., and “formal action” in par. 3 of sec. 40.025 (1) (d), as requiring action by all 13 boards. This would also require reading an unstated exclusion into the- third sentence of sec. 40.06 (3) and par. 6a of sec. 40.025 (1) (d), excluding the application of these provisions to a situation where all municipal boards had acted. However, in situations in which no order of denial was contemplated to be entered, the formal action taken by any of the boards in denying the petition is just as effective to deny the petition as action taken by all the boards. Therefore, we cannot conceive that the legislature intended to draw the fine line of distinction which would result from adopting this alternative construction.

By the Court. — Judgment reversed, and cause remanded with directions to enter a judgment adjudicating defendant’s order of April 24, 1962, as amended May 8, 1962, void.

       Sec. 40.06 (5) (a), Stats. 1955, provided: “Any person aggrieved by an order of a municipal board or council may appeal to the state superintendent within 30 days, following the recording of such order; if a board or council, when petitioned to do so, refuses or neglects to issue and record an order of alteration, dissolution, consolidation or creation, any person aggrieved may appeal within 90 days following the filing of the petition.”

       Sub. (5) of sec. 40.025, provides in part, “A certified copy of any order made under ss. . . . 40.06 . . . shall be filed within 10 days with the county superintendent of the county in which the reorganized district lies.”

       The first sentence of sec. 40.06 (2), Stats., provides,
      “When a petition is filed or a resolution is adopted for the reorganization of a school district, as provided in sub. (1), and any territory of the proposed reorganized district comprises all or part of a school district affected by such reorganization which lies in more than one town, village or city, the boards of all such towns and villages and the councils of all such cities in which any territory of any school district affected lies shall act jointly thereon; the concurrence of a majority of each board or council is necessary to a valid order.”


source: Caselaw Access Project

author: Fairchild, J.

license: Public Domain

text:
    Werlein, Respondent, v. Werlein, Appellant.

      March 4

    March 30, 1965.

      For the appellant there was a brief by Fugina, Kostner & Ward of Arcadia, and oral argument by La Vern G. Kostner.

      For the respondent there was a brief by Whelan, Morey & Morey and Randall E. Morey, all of Mondovi, and oral argument by Randall E. Morey.

   Fairchild, J.

1. The division of defendant’s net worth. Defendant’s debts (excluding the amount owed Esther) amounted to $29,037.96. Intangible assets had a value of $6,354.18. There was conflicting testimony with respect to the value of the farm and tangible personal property. Plaintiff’s witness Rockwell made an appraisal in April, 1964, but was unable to give a very satisfactory opinion as to changes in value between that date and the date of trial in September, 1964. Defendant’s witnesses Winsand and Garaghan made an appraisal July 13 and 14, 1964, at $77,240. Garaghan testified that the market price of cattle had dropped by $5,000 after the date of appraisal. Winsand thought that the reduction was mainly in the value of dairy cows, about $30 each. There appear to have been 37 cows and the reduction would amount to $1,110. Francis Werlein testified that the value at date of trial was $65,000.

The net worth (excluding the amount owed Esther) was determined by the court at $51,473.38, approximately midway between the figures obtained by using the July appraisal and the $5,000 Garaghan adjustment ($49,556.22) and by using the July appraisal and the $1,110 Winsand adjustment ($53,446.22).

Werlein does not challenge the court’s finding except to suggest that greater weight should have been given his own testimony as an expert. This point will be referred to in another connection.

Thus the property division allowed by the court represents a return to Esther of $9,754.84 furnished by her and a share amounting to $10,429.63, or 25 percent, of the remaining net worth of $41,718.54.

2. Defendant’s testimony with respect to value. The court permitted defendant to state his estimate of the value of his property, both at the time of his marriage to plaintiff and at the time of trial but would “not allow the defendant to testify as an expert in his own behalf.” Defendant had experience as an auctioneer and real-estate salesman which might well have qualified him as an expert on such values. Plaintiff’s counsel concedes that there is no rule which would render a party incompetent to testify as an expert in his own case if otherwise found qualified.

Assuming, however, that the portion of the court’s remark above quoted reflected an erroneous view of law, the opinion filed by the court shows that it did, in fact, consider defendant’s testimony on values. The trial court could properly discount such testimony on account of defendant’s obvious interest in the outcome. It does not clearly appear that the court failed to consider defendant’s background and experience as well as the extent of his interest in the case in weighing his testimony with respect to value.

3. Antenuptial agreement. Defendant offered an ante-nuptial agreement executed by the parties August 22, 1960. It provided that at the death of Francis, all household furniture and equipment should be transferred to Esther and she should be paid $2,500 out of his estate. She agreed to renounce all claims of any sort in or against his estate. Paragraph six of the agreement provided that in the event of a separation or divorce, the transfer and payment already referred to should be made and be accepted by Esther as a final division of estate and in lieu of all alimony. Paragraph six also provided that if it be held void, the remainder of the contract should remain in force. Defendant concedes that it is the rule in this court that an antenuptial contract which purports to limit the husband’s liability in the event of separation or divorce is void as against public policy. He asks us to re-examine and overrule this principle, suggesting that the proper considerations of public policy do not support the rule. We find, however, no persuasive reason for reconsideration of the rule.

Defendant argues further that in any event, the antenuptial agreement was admissible for the limited purpose as offered, of affecting the equities on a division of estate. Disregarding the objectionable paragraph six, it would seem proper that the agreement be considered as one of the circumstances of the parties insofar as it determined the rights which the wife would have in the husband’s property at his death if the marriage had continued. In the instant case, however, we cannot conclude that the consideration of the agreement would have any appreciable weight in reaching an equitable division of the property where the husband is in good health and forty-six years of age. Under these circumstances, the fact that Esther would have been entitled, after presumably many additional years of marriage, to only $2,500 at his death would seem remote.

4. The propriety of the division. The division of property in a judgment of divorce “is peculiarly a matter resting in the discretion of the trial court, subject to such rules as have been established by this court for guidance in respect to the matter.” For principles to be applied in making a division of property, see Wagner v. Wagner.

It is true that the marriage was of short duration. Defendant’s net worth apparently decreased during the marriage and an allowance has been made for alimony and support money in addition to division of estate. It is also true on the other hand that plaintiff will be required to devote her time for many years to the care of the three small children and must establish and maintain a home for them. Plaintiff contributed cash for the advancement of the family enterprise and land was purchased and added to the farm during the marriage. We find no abuse of discretion so far as the division of property is concerned in awarding plaintiff a return of her money and an amount equal to 25 percent of the remaining net worth.

5. Consideration of farm losses and possible sale of farm. The trial court found that defendant had an annual income of $8,000 to $10,000 a year as auctioneer and real-estate salesman. This finding is not disputed and in the light of it, we could not say that it was an abuse of discretion to require the defendant to make monthly payments totaling $325 for support money and alimony in addition to the $100 per month payment which he is obliged to make to his first wife. A problem arises because defendant devotes much of his time to activity off his farm, and operates the farm at a loss. The trial court’s solution of this problem was to treat defendant’s farming and his resulting losses as a matter of choice on the part of the defendant. If the farming operation be so considered, then the court could properly base its allowance of monthly payments upon defendant’s income as auctioneer and real-estate salesman, and also require prompt payment of the award to the plaintiff even though that would probably compel the sale of the farm. The farm real estate was appraised at $39,465 and was subject to a mortgage of $11,800.

The loss or profit from farm operations and sale of livestock as disclosed by defendant’s income-tax returns were as follows for the years in question:

1960 Farm loss after claiming $1,806.61 for depreciation, and including sale of livestock $1,734.04
1961 Farm loss after claiming $2,046.51 for depreciation ($2,115.19, profit from sale of livestock not included) 8,424.93
1962 Farm loss after claiming $2,377.96 for depreciation ($7,541.37, profit from sale of livestock not included) 3,978.73
1963 Farm loss after claiming $2,338.76 for depreciation ($1,015.11, profit from sale of cattle not included) 6,381.23

Upon reviewing all these factors, the majority of this court is concerned over the fact that the defendant has been a farmer for many years and the probability that there is a substantial direct relationship between his maintaining his activity as a farmer (including sales of livestock) and his ability to continue his earnings as an auctioneer and real-estate salesman. The majority of the court concludes that the failure of the trial court to give some consideration to the losses resulting from farm operation and to the probability that it is good judgment for defendant to continue his farming operation is an abuse of discretion. It is our opinion that this matter can best be resolved by further consideration by the county court, either extending more favorable terms to the defendant as to the time of payment of all or a part of the money awarded to plaintiff, with or without interest in the event of an extension, or reducing in some degree the monthly payments required of defendant, or granting some combination of these types of relief.

Defendant also appealed from the portion of the judgment which requires defendant to pay part of the attorney’s fees of the plaintiff. No argument has been presented attacking this portion of the judgment.

By the Court. — The part of the judgment which fixes the time for payment of plaintiff’s award on or before six months from the date of the judgment; the part of the judgment fixing the amount of support money for the minor children; and the part of the judgment awarding alimony are reversed and the cause is remanded for further consideration not inconsistent with the opinion on file herein. In all other respects, the judgment is affirmed. No costs are to be taxed in this court.

        Fricke v. Fricke (1950), 257 Wis. 124, 129, 42 N. W. (2d) 500; Caldwell v. Caldwell (1958), 5 Wis. (2d) 146, 155, 92 N. W. (2d) 356.

        Gauger v. Gauger (1914), 157 Wis. 630, 632, 147 N. W. 1075.

       (1961), 14 Wis. (2d) 23, 27, 28, 109 N. W. (2d) 507.


author: Wilkie, J.

text:
    State ex rel. Goodchild, Petitioner, v. Burke, Warden, Respondent.

      March 4

    March 30, 1965.

      For the petitioner there was a brief and oral argument by Patrick A. Dewane of Manitowoc.
    For the respondent the cause was argued by William A. Plats and Betty R. Brown, assistant attorneys general, with whom on the briefs was Bronson C. La Follette, attorney general.

       Motion for rehearing denied, without costs, on June 25, 1965,

   Wilkie, J.

Five principal issues are presented by this petition and return:

1. Is the petition for habeas corpus premature ?

2. Was it constitutional error not to appoint counsel for petitioner on his “arraignment” ?

3. Did admission of confessions and statements obtained between the first appearance in municipal court and the time counsel was appointed constitute constitutional error?

4. Was there constitutional error in the procedure on the trial where the trial judge did not make a determination as to the voluntariness of defendant’s confessions before they were received in evidence ?

5. If there was constitutional error in the manner of determining the voluntariness of the confessions, was such error waived when counsel, for strategic reasons, failed to object to their receipt in evidence?

Prematurity of Petition.

On April 4, 1961, petitioner was paroled. On July 10, 1961, Goodchild was convicted on his plea of guilty of an April burglary in the municipal court of Milwaukee, and sentenced (under the repeater statute) to not more than eighteen years, the term to run consecutively to the murder sentences. His parole on the murder sentences was revoked on June 2, 1961, effective May 9, 1961. Petitioner has filed a habeas corpus (dated March 26, 1964) contesting his burglary conviction, and that petition is outstanding.

The attorney general contends that Goodchild’s instant petition is premature since, even if the murder convictions were vacated, he would still be subject to the eighteen-year burglary term and could not be discharged from custody.

Historically, habeas corpus was utilized to actually free the accused and it is true that, even if the writ Goodchild prays for here were issued, he would not be entitled to immediate liberty. Goodchild asserts claims of constitutional error that would invalidate the murder convictions. We have consistently held that such claims may be reviewed by habeas corpus.

There are at least three reasons why we should not consider this petition premature:

1. Although voiding of these convictions at any time prior to the length of the sentence imposed for the burglary could not absolutely result in Goodchild’s release, if these two murder convictions were set aside, his parole and conditional-release opportunities would then be based on the single burglary sentence and not iri conjunction with the murder sentences.

2. Another reason for taking action on this petition now is that the legislature has provided no post-conviction procedure to adjudicate alleged constitutional errors surrounding a conviction once the time for appeal has passed, unless it be by petition for the writ of habeas corpus addressed to this court.

3. Furthermore, where habeas corpus results in the delivery of a prisoner for an ordered new trial or other hearing years after his conviction either or both the prosecution and defense may be handicapped by the dimming memory of witnesses that may be still available and by the death or absence of other witnesses. Where constitutional rights may be involved it seems only logical to consider these grievances when presented rather than to postpone our consideration until years later when these difficulties may be aggravated.

We proceed then to a detailed consideration of the petition on its merits.

Denial of Counsel.

Goodchild did not have counsel at the March 17th and March 30th “arraignments” in the municipal court for the second-degree murders of his father and Becker respectively.

These were not “arraignments” although the magistrate so denoted them. The term “arraignment” is reserved for an appearance in a court having jurisdiction to take a plea to an information or indictment that has been filed and to which the court asks the defendant to plead. The municipal court here told the defendant that he had no power to take a plea and the appearances made by the defendant, either on March 17th or March 30th, were not at an “arraignment” but appearances before a magistrate before whom the two complaints were returnable.

At both of these initial appearances Goodchild was advised “of his right to the aid of counsel” and in open court he told the court he did not want counsel. After waiving the preliminary examination in each instance he was bound over to circuit court.

.On March 20, 1953, the defendant was brought before the circuit court on the charge of the second-degree murder of his father. He did not plead to the information which had been read to him. In fact, the hearing was limited to a motion by the district attorney for a mental and physical examination of the defendant. At the hearing Goodchild did state he needed an attorney but after the court repeatedly advised him he could have such counsel, Goodchild stated he would wait until he came back from the examination before he took an attorney. The circuit court ordered a mental and physical examination of the defendant at the Bradley Memorial State Hospital at Madison.

On March 30, 1953, after waiving the preliminary on the charge of the second-degree murder of Becker, Goodchild was brought before the circuit court for arraignment on this charge. Again he entered no plea. The court also entered an amended order directing a mental and physical examination of the defendant at the Central State Hospital at Waupun since the Bradley Memorial State Hospital at Madison had been unable to complete the examination. He requested the appointment of Attorney Patrick Dewane, whom the court, then and there, appointed.

Mr. Dewane represented the defendant at all related and subsequent proceedings, either in the municipal court or the circuit court. Petitioner now contends that the failure of the court to provide him with an attorney at his “arraignment” violates his Sixth amendment (United States constitution) right to counsel.

From March 30, 1953, Goodchild was represented by counsel. Before Attorney Dewane was appointed as counsel to the defendant he had appeared at two preliminaries, where he refused counsel and waived the preliminary examination. At the two related arraignments in circuit court he entered no plea and on March 30th, when he asked for counsel the appointment was made immediately. Counsel represented him at the preliminary examination on the two amended counts of first-degree murder, the only preliminary held on charges on which the defendant was actually tried. Counsel represented him at the subsequent arraignment in circuit court when petitioner, for the first time, entered a plea, and in all phases of the circuit court proceedings, both before and after the trial. Thus, there is no merit whatsoever to his claim that he was denied counsel at the so-called “arraignments” or at any other stage in the court proceedings.

Confessions Obtained Between First Court Appearance and the Time Counsel was Appointed.

Goodchild, relying on Spano v. New York, Massiah v. United States, and Escobedo v. Illinois, contends that any confessions made after his first appearance in municipal court on March 17th and before March 30th (when counsel was appointed) were inadmissible. Involved are three statements or confessions, all given on March 26th. Exhibit No. 23 is a tape recording of a statement made at the state crime laboratory and Exhibit No. 22 is a transcription of the recorded statement. Exhibit No. 26 is a confession he signed after he was returned to Manitowoc. The cases Goodchild cites are distinguishable. In Spano the accused, despite repeated pleas to see his attorney and after approximately eight hours of continual questioning, was tricked into confessing by the repeated urging and misrepresentations of a friend who was a policeman. Massiah involved the planting of a hidden microphone in the car of a coaccused who had become a cooperator with the police. The co-operator then deliberately elicited incriminating statements from Massiah who was out of jail on bail. Not only was the accused in Escobedo, despite attempts to do so, not allowed to consult his counsel during a lengthy interrogation by the police, but his attorney, who was at the police station, was not allowed to see his client.

The opinions in the cases Goodchild relies on make it clear that the total circumstances must be considered when dealing with a particular situation. Unlike the defendants in these cases, Goodchild was in no way tricked or misled. No surreptitious or extended interrogations took place. He was not threatened or pressured. Goodchild admitted that he was well treated. There is no claim of brutality. He was never denied access to or the assistance of counsel; in fact, he refused counsel when he first appeared in municipal court on March 17th and there is nothing in the record indicating that he ever requested counsel until his arraignment in circuit court on March 30th. He was repeatedly advised of his right to counsel. A consideration of all the facts demonstrates a lack of extenuating circumstances such as were present in Spano, Massiah, and Escobedo, which would render any statement taken before counsel had been appointed inadmissible.

This analysis is contrary to the holding and rationale adopted by the supreme court of California in the very recent case of People v. Dorado. Dorado interprets Escobe-do and Massiah as precluding the admission of a confession even when the defendant does not request counsel. The court held (in a four-three decision) that the confession had constitutional defects because:

“(1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights.”

However, Dorado is distinguishable. The California court recognized that Escobedo permits an accused to waive counsel, but emphasizes the point that a right which is not known cannot be waived. The crucial fact difference is that Dorado was not advised of any rights in regard to counsel while Goodchild was and expressly waived his right to be represented. Thus point (4) of the holding is not pertinent to the present case.

Not only has the decision in Dorado gone further than any pronouncement of the United States supreme court, but the Dorado rule is contrary to several very recent Wisconsin decisions. In Pulaski v. State and State v. Brown confessions were admitted even though obtained while the accused was unrepresented. It does not appear whether either Pulaski or Brown was advised of his right to counsel, but Pulaski maintained,that his request for counsel had fallen on deaf ears. Although the opinions did not allude to Massiah or Escobedo, the holdings in Brown and Pulaski that the confessions were properly admitted are contrary to the ruling in Dorado.

In Browne v. State the defendant made certain admissions after his arrest. The court found that there was no error in introducing them in evidence. On rehearing, Browne urged that Escobedo (which had been decided by the United States supreme court since our original decision in Browne) was controlling. After recognizing, as do the dissenters in Dorado, that Escobedo turned on particular circumstances, this court pointed out that the only common fact in Browne and Escobedo was a failure to advise the accuseds of their right to remain silent. The court said:

“He made no request to consult with an attorney nor did any attorney seek to confer with him. We deem that this fully distinguishes Escobedo and that it does not control the result here.
“With respect to the failure to advise defendant of his constitutional right to remain silent, Holt v. State (1962), 17 Wis. (2d) 468, 479, 117 N. W. (2d) 626, held that there is no hard-and-fast rule that an accused must be informed of his constitutional right not to incriminate himself as a condition precedent to admission into evidence of any admissions or confessions made to the police. The most that Escobedo holds in this respect is that the failure to so inform a criminal suspect under arrest, when coupled with other circumstances, may be sufficient to require exclusion of any admission made by him. We find here a total lack of any other circumstances which require exclusion of the instant admissions.”

Thus, the express holding of Browne is contrary to that of Dorado. We believe that this court’s interpretation of Escobedo in Browne is correct. We reject the interpretation made by the California court in Dorado.

Confession Procedure.

Goodchild maintains that his statements and confessions were involuntarily given due to harassment on the part of law-enforcement officers while he was tired, undernourished, and physically and psychologically ill. At the trial the court admitted in evidence all seven confessions and statements. The court followed the established Wisconsin procedure for determining the voluntariness of the confessions. Under this procedure the trial court first passes on the admissibility of the confessions. If clearly involuntary, the confession is not allowed into evidence. If there is a doubt as to its vol-untariness, this issue is submitted to the jury with appropriate instructions. A similar procedure that had been followed in New York was recently struck down by the United States supreme court in Jackson v. Denno, as being viola-tive of due process.

Jackson had confessed to a murder and, after disputed evidence had been received as to the voluntariness of that confession, under the established New York procedure, the defendant was convicted. After losing his appeals, Jackson sought habeas corpus in the federal district court, asserting that his conviction was founded on a confession not properly determined to be voluntary. The writ was there denied and the court of appeals affirmed. The supreme court reversed, holding:

“In our view, the New York procedure employed in this case did not afford a reliable determination of the voluntariness of the confession offered in evidence at the trial, did not adequately protect Jackson’s right to be free of a conviction based upon a coerced confession and therefore cannot withstand constitutional attack under the Due Process Clause of the Fourteenth Amendment.”

Goodchild contends his convictions for murder were founded on confessions that were not properly determined to be voluntary and under a procedure that is voided by Jackson v. Denno.

Our consideration must first be directed to whether this issue should be determined by our court bearing in mind that Goodchild is imprisoned under criminal judgments that have been finalized and to date there has been no precise ruling by the United States supreme court that Jackson v. Denno is retroactive. In the instant case Goodchild is deprived of any benefit of the effects of Jackson v. Denno invalidating the Wisconsin procedure for determining voluntariness because, as will be detailed below, for strategic reasons no objection was made and, therefore, under the holding in the more recent case of Henry v. Mississippi Goodchild waived any constitutional defect that there may have been in that procedure. We reserve any ruling on whether Jackson v. Denno is retroactive. Nevertheless, we owe a duty to the trial courts, prosecuting attorneys, the defense bar, and to the citizenry of Wisconsin, to speak clearly on the effect of Jackson v. Denno in Wisconsin.

The rationale adopted by the United States supreme court in Jackson v. Denno in voiding the New York procedure is spelled out in that opinion. The court states:

“Under the New York procedure, the evidence given the jury inevitably injects irrelevant and impermissible considerations of truthfulness of the confession into the assessment of voluntariness. Indeed the jury is told to determine the truthfulness of the confession in assessing its probative value. As a consequence, it cannot be assumed, as the Stein Court assumed, that the jury reliably found the facts against the accused. This unsound assumption undermines Stein’s authority as a precedent and its view on the constitutionality of the New York procedure. The admixture of reliability and voluntariness in the considerations of the jury would itself entitle a defendant to further proceedings in any case in which the essential facts are disputed, for we cannot determine how the jury resolved these issues and will not assume that they were reliably and properly resolved against the accused. And it is only a reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant and which would permit the jury to consider the confession in adjudicating guilt or innocence.
“But we do not rest on this ground alone, for the other alternative hypothesized in Stein — that the jury found the confession involuntary and disregarded it — is equally unacceptable. Under the New York procedure, the fact of a defendant’s confession is solidly implanted in the jury’s mind, for it has not only heard the confession, but it has been instructed to consider and judge its voluntariness and is in position to assess whether it is true or false. If it finds the confession involuntary, does the jury — indeed, can it — then disregard the confession in accordance with its instructions ? If there are lingering doubts about the sufficiency of the other evidence, does the jury unconsciously lay them to rest by resort to the confession? Will uncertainty about the sufficiency of the other evidence to prove guilt beyond a reasonable doubt actually result in acquittal when the jury knows the defendant has given a truthful confession ?
“It is difficult, if not impossible, to prove that a confession which a jury has found to be involuntary has nevertheless influenced the verdict or that its finding of voluntariness, if this is the course it took, was affected by the other evidence showing the confession was true. But the New York procedure poses substantial threats to a defendant’s constitutional rights to have an involuntary confession entirely disregarded and to have the coercion issue fairly and reliably determined. These hazards we cannot ignore.
“As reflected in the cases in this Court, police conduct requiring exclusion of a confession has evolved from acts of clear physical brutality to more refined and subtle methods of overcoming a defendant’s will.
“ ‘[T]his Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if demonstration were needed, that the efficiency of the rack and the thumbscrew can be matched, given the proper subject, by more sophisticated modes of “persuasion.” ’ Blackburn v. Alabama, 361 U. S. 199, 206.
“Expanded concepts of fairness in obtaining confessions have been accompanied by a correspondingly greater complexity in determining whether an accused’s will has been overborne — facts are frequently disputed, questions of credibility are often crucial, and inferences to be drawn from established facts are often determinative. The overall determination of the voluntariness of a confession has thus become an exceedingly sensitive task, one that requires facing the issue squarely, in illuminating isolation and unbeclouded by other issues and the effect of extraneous but prejudicial evidence. See Wilson v. United States, 162 U. S. 613; United States v. Carignan, 342 U. S. 36; Smith v. United States, 348 U. S. 147. Where pure factual considerations are an important ingredient, which is true in the usual case, appellate review in this Court is, as a practical matter, an inadequate substitute for a full and reliable determination of the volun-tariness issue in the trial court and the trial court’s determination, pro tanto, takes on an increasing finality. The procedures used in the trial court to arrive at its conclusions on the coercion issue progressively take on added significance as the actual measure of the protection afforded a defendant under the Due Process Clause of the Fourteenth Amendment against the use of involuntary confessions. These procedures must, therefore, be fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the vol-untariness issue may depend. In our view, the New York procedure falls short of satisfying these constitutional requirements. Stein v. New York is overruled.”

If Stein is overruled by Jackson, so too must be the Wisconsin version of the New York rule as set forth in Pollack and Bronston. That is our ruling.

Since the Wisconsin procedure heretofore observed is unconstitutional, we must adopt in its place either the “Massachusetts” or the “orthodox” rule for determining the voluntariness of confessions, both of which rules were approved in Jackson. The differences between the rules are considered in detail in both the majority and minority opinions in Jackson together with their voluminous footnotes, references, and appendices.

In essence the orthodox rule provides for a separate hearing before the trial judge alone on the issue of voluntariness with a determination by him that is final. If the trial judge finds on a proper record that the confession is involuntary, that is the end of the matter and the jury never considers the confession. If the judge determines that the confession was voluntarily made, the confession is admitted and the jury consideration is limited to its weight and credibility. In essence this rule is but an extension of the present procedure for establishing the admissibility of evidence challenged by a motion to suppress.

The Massachusetts rule differs in that if the trial judge decides that the confession was voluntary the jury considers the admitted confession and by its own deliberations, under instructions, may nevertheless find it to have been involuntarily given, and thus disregard it completely.

Since Jackson, both New York and Oregon have adopted the Massachusetts procedure. One reason given by the New York court is that the New York state constitution commands a jury trial on the issue of voluntariness. Since the jury-trial provision in the New York constitution is stated in general terms, and does not in express terms require a jury trial on the issue of voluntariness, the New York holding must be the court’s own interpretation of the New York constitution. This is because the United States constitution contains a similar general-trial-by-jury requirement, and in Jackson the court ruled that a procedure whereby the jury does not pass on the voluntariness issue— i.e., the orthodox rule — is proper. Wisconsin also has a general jury provision. We reject the New York rationale. We prefer the Jackson rationale and result. Moreover, the determination of whether a confession is voluntary in substance is a ruling on the admissibility of evidence and there is no requirement to have a jury trial on such rulings. There is no constitutional provision requiring the adoption of the Massachusetts procedure in Wisconsin.

In adopting the orthodox rule in Michigan, their supreme court has criticized the Massachusetts approach:

“We think the latter rule contains a contradiction in terms. If we arrogate to the trial judge the right to adjudicate voluntariness, even though that question involves issues of fact, we find no basis in logic in submitting the same question over again to the jury to second-guess him. We believe their determination should be limited to truthfulness, i.e., weight and credibility.”

Scholars favor the orthodox rule to assure the defendant a clean-cut adjudication of voluntariness and in order to prevent the jury from merging that issue into the issue of guilt. It appears that a consensus of the board of criminal court judges advocates the orthodox view.

We adopt for the state of Wisconsin the orthodox procedure described in the Jackson v. Denno opinion “under which the judge himself solely and finally determines the voluntariness of the confession, . . .”

In the interest of better administration of criminal justice we suggest that wherever practicable the prosecutor should within a reasonable time before trial notify the defense as to whether any alleged confession or admission will be offered in evidence at the trial. We also suggest, in cases where such notice is given by the prosecution, that the defense, if it intends to attack the confession or admission as involuntary, notify the prosecutor of a desire by the defense for a special determination on such issue.

At the hearing on the issue, the trial judge sitting alone shall make a determination upon a proper record upon the issue of voluntariness. The state shall have the burden of proving voluntariness beyond a reasonable doubt. At this hearing the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances under which the confession was obtained. By so doing, the defendant does not waive his right to decline to take the stand in his own defense on the trial in chief. Neither does he waive any of the other rights stemming from his choice not to testify.

Following the hearing the trial judge shall make his determination as to the voluntariness of the confession which determination is upon a question of constitutional fact and shall be supported by findings of fact and conclusions of law. If the confession is held voluntary and admitted, the jury’s consideration of that confession and surrounding circumstances shall proceed in accordance with the “orthodox” procedure.

Defendant’s Waiver of Constitutional Error in Procedure as to Voluntariness.

Goodchild’s attorney did not object to the introduction into evidence of any of the statements or confessions. Neither did he object to the procedure employed for determining voluntariness of the confession. Relying on Henry v. Mississippi, the attorney general contends that Good-child is bound by this waiver on the part of his attorney. As noted, Henry was decided after Jackson. It involved evidence purportedly obtained as a result of an illegal search and seizure, but the rule announced would be applicable in a confession case. In Henry evidence was admitted at the trial without objection, but on appeal to the state court the defendant alleged that the evidence had been obtained as the result of an illegal search. The court decided that the failure to object was fatal to defendant’s appeal. The United States supreme court held that the defendant was bound only if his counsel “knowingly waived” objection to the evidence for purposes of trial strategy. After discussing possible reasons for the failure to object, the court said:

“If either reason motivated the action of petitioner’s counsel, and their plans backfired, counsel’s deliberate choice of the strategy would amount to a waiver binding on petitioner and would preclude him from a decision on the merits of his federal claim either in the state courts or here.”

The case was remanded for a factual determination of whether the failure to object was due to ignorance or “ ‘for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures.’ ”

The question of whether it is necessary to object to preserve errors based on constitutional rights is somewhat confused by what actually happened in Jackson. There, as in the present case, no objection was made when the confession was introduced. The majority opinion did not even consider the waiver problem. So, but for Henry, the fact that there was no objection would seemingly be of no relevance in the determination of this case. The announced holding of Henry is inconsistent with what was actually done in Jackson, particularly if Jackson’s attorney did not raise objections as a matter of trial technique. This inconsistency was not discussed in the Henry opinion. However, inasmuch as the Henry decision was addressed to the specific issue of waiver while Jackson primarily dealt with the practice of submitting a confession to the jury on the voluntariness issue, it is only reasonable to assume that Henry is controlling.

In the instant case there is no need for a Henry type hearing to determine whether the defendant waived any objection he may have had relative to constitutional error associated with the manner in which the issue of voluntariness of his confessions was resolved.

Goodchild’s counsel was a former Manitowoc county district attorney. When the district attorney offered Exhibits No. 14 and No. 15 into evidence, Attorney Dewane declared “I have no objection to them; I want the jury to have the whole thing.” Similarly, when Exhibit No. 16 was offered, Dewane again repeated that he had no objection, and further said “I want the jury to have the whole story.” He expressly stated that he had no objection to the introduction of any of the other statements or confessions. Dewane himself insisted that the whole of the confession Goodchild had given the psychiatrist (Exhibit No. 25) be received when the district attorney only offered portions of it. At oral argument before this court, Dewane explained that he felt that objecting to the confessions and statements would have alienated the jury against his client. An examination of the record and counsel’s explanation on oral argument indicate beyond any doubt that Attorney Dewane deliberately declined to object for tactical reasons.

The court suggested in Henry that under exceptional circumstances the accused is not precluded from asserting constitutional claims despite counsel’s strategy. There was no elaboration in the opinion of just what might constitute such circumstances. Attorney Dewane defended Goodchild in an able and vigorous fashion. That a conviction nonetheless resulted is not enough of itself to declare that the trial technique employed by counsel was so unwise or questionable as to relieve Goodchild of the consequences of his counsel’s waiver. Indeed, Goodchild was not convicted of first-degree murder as charged but of the included lesser offense of second-degree ° murder.

We conclude that because of Henry, Goodchild waived any constitutional error that was involved in the manner in which the issue of voluntariness was resolved.

There is no merit in any other grounds for the issuance of the writ as contained in the subject petition.

By the Court. — Issuance of writ of habeas corpus denied.

         Babbitt v. State (1964), 23 Wis. (2d) 446, 452, 127 N. W. (2d) 405, and cases cited therein. Wolke v. Fleming (1964), 24 Wis. (2d) 606, 613, 614, 129 N. W. (2d) 841.

       Sec. 958.13, Stats.

       Sec. 292.03, Stats.

        Ch. 355, Stats. 1951.

       (1959), 360 U. S. 315, 79 Sup. Ct. 1202, 3 L. Ed. (2d) 1265.

       (1964), 377 U. S. 201, 84 Sup. Ct. 1199, 12 L. Ed. (2d) 246.

       (1964), 378 U. S. 478, 84 Sup. Ct. 1758, 12 L. Ed. (2d) 977.

       (1965), 42 Cal. Rptr. 169, 398 Pac. (2d) 361.

       Id. 398 Pac. (2d) at page 371.

       Id. 398 Pac. (2d) at page 370.

       (1964), 24 Wis. (2d) 450, 129 N. W. (2d) 204.

       (1964), 25 Wis. (2d) 413, 130 N. W. (2d) 760.

       (1964), 24 Wis. (2d) 491, 129 N. W. (2d) 175, 131 N. W. (2d) 169.

       Id. at page 511g.

       The United States supreme court denied certiorari in the Browne Case, February 1, 1965, 379 U. S. 1004, 85 Sup. Ct. 1094, 13 L. Ed. (2d) 706. Rehearing denied March 29, 1965.

         State v. Bronston (1959), 7 Wis. (2d) 627, 97 N. W. (2d) 504, 98 N. W. (2d) 468; Pollack v. State (1934), 215 Wis. 200, 253 N. W. 560, 254 N. W. 471.

       Approved in Stein v. New York (1953), 346 U. S. 156, 73 Sup. Ct. 1077, 97 L. Ed. 1522.

        Supra, footnote 2.

        People v. Jackson (1961), 10 N. Y. (2d) 780, 177 N. E. (2d) 59; amended opinion (1961), 10 N. Y. (2d) 816, 178 N. E. (2d) 234. Certiorari denied (1961), 368 U. S. 949, 82 Sup. Ct. 390, 7 L. Ed. (2d) 344.

        Application of Jackson (D. C. N. Y. 1962), 206 Fed. Supp. 759.

        Jackson v. Denno (2d Cir. 1962), 309 Fed. (2d) 573.

        Supra, footnote 2, at page 377.

       (1965), 379 U. S. 443, 85 Sup. Ct. 564, 13 L. Ed. (2d) 408.

        Jackson v. Denno, supra, footnote 2, at page 386.

        Supra, footnote 2, at pages 378, 379.

         People v. Huntley (1965), 15 N. Y. (2d) 72, 204 N. E. (2d) 179, 255 N. Y. Supp. (2d) 838.

        State v. Brewton (Or. 1964), 395 Pac. (2d) 874.

       Sec. 2, art. I, New York constitution. “Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; . . .”

       Sixth amendment, United States constitution: “. . . the accused shall enjoy the right to a speedy and public trial, by an impartial jury . .

       Sec. 5, art. I, Wisconsin constitution: “The right of trial by jury shall remain inviolate, . .

        People v. Walker (1965), 374 Mich. 331, 132 N. W. (2d) 87, 91.

       Meltzer, Involuntary Confessions: The Allocation of Responsibility between Judge and Jury, 21 University of Chicago Law Review (1954), 317; McCormick, Evidence (hornbook series), p. 233, sec. 112; 3 Wigmore, Evidence (3d ed.), p. 345, sec. 861.

        Supra, footnote 2, at page 378.

       Sec. 955.09 (3), Stats., lists certain defenses and objections that “must be raised before trial” or “be deemed waived.” Confessions are excepted by the express terms of the statute, which provide: “Defenses and objections based on defects in the institution of the proceedings, insufficiency of the information or indictment, invalidity in whole or in part of the statute on which the prosecution is founded, or the use of illegal means to secure evidence (except confessions) must be raised before trial by motion or be deemed waived. But the court may, in its discretion, entertain such motion at a later stage of the trial, in which case the defendant waives any jeopardy that may have attached. A motion to suppress evidence shall be so entertained, with waiver of jeopardy, when it appears that defendant is surprised by the state’s possession of such evidence.”

        People v. Walker, supra, footnote 33, 132 N. W. (2d) 87, 91.

        State v. Hoyt (1964), 21 Wis. (2d) 284, 124 N. W. (2d) 47, 128 N. W. (2d) 645; note concurring opinion.

       On appeal no objections were made on either point and the only contention made was that the confessions were not properly submitted to the jury under the then established Wisconsin procedure established in Pollack, supra, footnote 18. The lower court was affirmed on this count as on all others. See Goodchild Case, supra, footnote 1.

        Supra, footnote 25.

       The defendant moved for a directed verdict at the close of the state’s case on the ground, among others, that the evidence was erroneously received. The court intimated that this motion may have fulfilled the purpose underlying the rule that timely objection to the introduction of evidence must be made, but declined to answer the question directly. A reading of the opinion, however, indicates that the case was decided on the “trial strategy” ground.

        Henry v. Mississippi, supra, footnote 25, at page 451.

       Id. at page 450.

       Although Mr. Justice Clark did in his dissent.

        Henry v. Mississippi, supra, footnote 25, at page 451.


author: Beilfuss, J.

text:
    Cihlar, Appellant, v. Harvey and another, Respondents.

      March 5

    March 30, 1965.

    For the appellant there was a brief by Byrne, Bubolz, Spanagel & Pfankuch of Appleton, and oral argument by William S. Pfankuch.

    No brief or appearance for the respondents.
   Beilfuss, J.

The question of whether the trial court abused its discretion in granting a new trial is the sole issue presented.

From our review of the entire record, the brief and argument of the plaintiff are quite persuasive. However, because we have not had the benefit of a brief or oral argument from defendants, we decline to pass upon the matter on its merits but reverse under the statutory procedural rule.

Supreme Court Rule 57, sec. 251.57, Stats., provides:

“When a cause is submitted, or presented by counsel for appellant or plaintiff in error, but not by the opposing party, the judgment or order appealed from may be reversed as of course, without argument.”

We reverse, “as of course,” pursuant to Rule 57. Fuller v. Fiedler (1963), 19 Wis. (2d) 422, 120 N. W. (2d) 700; Estate of Ohnstad (1962), 15 Wis. (2d) 361, 112 N. W. (2d) 917; Long v. Wallmow (1938), 226 Wis. 660, 277 N. W. (2d) 704.

By the Court. — Order reversed with directions to reinstate the verdict and enter judgment thereon.


author: Gordon, J.

text:
    Johnson and wife, Plaintiffs and Appellants, v. Bar-Mour, Inc., d/b/a Sterlingworth Hotel, Defendant: O’Donell, Defendant and Respondent.

      March 5

    March 30, 1965.

      For the appellants there was a brief by Habush, Gillick & Habush, and oral argument by Howard A. Davis, all of Milwaukee.
    For the respondent there was a brief by Foley, Capwell, Foley & Kolbe of Racine, and oral argument by Rex Capwell.

   Gordon, J.

To avoid the impact of the statute of limitations, the plaintiffs have urged that their amended complaint should relate back to the date of their original complaint.

The original complaint was served on a date beyond the two-year limitations period prescribed for an assault action in sec. 330.21 (2), Stats. When confronted with a demurrer to the original complaint, the plaintiffs amended their claim so as to allege that Dolores Johnson’s injuries were caused by Mr. O’Donell’s “carelessly, recklessly and negligently” pushing her. If it can relate back to the date on which the original complaint was served, the amended complaint was within the three-year period prescribed for injuries to the person in sec. 330.205.

The governing rule in Wisconsin was asserted in Meinshausen v. A. Gettelman Brewing Co. (1907), 133 Wis. 95, 102, 113 N. W. 408, where the court said that an amendment :

“. . . which sets up no new cause of action or claim, and makes no new demand, but simply varies or expands the allegations in support of the cause of action already propounded, relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. But an amendment which introduces a new or different cause of action, and makes a new or different demand, does not relate back to the beginning of the action, so as to stop the running of the statute, but is the equivalent of a fresh suit upon a new cause of action, and the statute continues to run until the amendment is filed; and this rule applies although the two causes of action arise out of the same transaction, and, by the practice of the state, a plaintiff is only required in his pleading to state the facts which constitute his cause of action.”

The rule of the Meinshausen Case has been frequently applied in subsequent decisions. Perlson v. Dairyland Mut. Ins. Co. (1964), 23 Wis. (2d) 391, 398, 127 N. W. (2d) 69; Lealiou v. Quatsoe (1961), 15 Wis. (2d) 128, 135, 112 N. W. (2d) 193; Fredrickson v. Kabat (1953), 264 Wis. 545, 547, 59 N. W. (2d) 484; Halvorson v. Tarnow (1950), 258 Wis. 11, 13, 44 N. W. (2d) 577; Kresge v. Miner Amusement Co. (1942), 239 Wis. 575, 579, 2 N. W. (2d) 236; Hafemann v. Seymer (1926), 191 Wis. 174, 210 N. W. 373; Curtice v. Chicago & N. W. R. Co. (1916), 162 Wis. 421, 156 N. W. 484.

The original complaint was based upon an assault. That the plaintiffs recognized this is suggested by the fact that they amended their complaint after a pleading by Mr. O’Don-ell pointed out that the assault claim was barred by the two-year provision of sec. 330.21 (2), Stats. The plaintiffs’ effort to have us read the original complaint as one averring negligence is not persuasive.

The amended complaint does sound in negligence. It is a different cause of action than the intentional wrong (assault) originally alleged. It is not fairly to be labeled an expansion or mere variation of an assault. The facts which would be relied upon to establish the original complaint are undoubtedly identical or closely related to those to be used to establish the amended claim; nevertheless, the cause of action is inherently new and different; relation back does not apply. The Hafemann Case, supra, is particularly applicable to the case at bar insofar as it distinguishes between gross negligence and ordinary negligence; the same distinction can be made as to intentional and unintentional wrongs.

In oúr opinion, the trial court properly granted summary judgment to Mr. O’Donell, since the plaintiffs’ claim against him under the amended complaint was untimely under sec. 330.205, Stats.

By the Court. — Judgment affirmed.


text:
    Koehler, Appellant, v. Haechler and another, Respondents.

      March 5

    March 30, 1965.

      For the appellant there was a brief by Ed. W. Knappe, attorney, and Royal E. Cass of counsel, both of Milwaukee, and oral argument by Mr. Cass.

    For the respondents there was a brief by Bernstein, Wes-sel, Weitsen & Lewis of Milwaukee, and oral argument by John El. Wessel.

   Fairchild, J.

The only claim of fraud is that the shares sold to plaintiff were issued in excess of the number aq-thorized. There is no claim that the financial condition of the corporation was misrepresented. Apparently all parties realized at the time of the sale of stock that the corporation was in difficulty.

Sec. 330.19, Stats., fixes a six-year period of limitation, applicable here, but provides that a cause of action for relief on the ground of fraud is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud.

Actual and complete knowledge of the fraud on the part of the plaintiff is not necessary in order to set the limitation period running.

“When the information brought home to the aggrieved party is such as to indicate where the facts constituting the fraud can be effectually discovered upon diligent inquiry, it is the duty of such party to make the inquiry, and if he fails to do so within a reasonable time he is, nevertheless, chargeable with notice of all facts to which such inquiry might have led.”

Commenting on the above passage, the court stated in 1961:

“Under the rule quoted above, it is not necessary that a defrauded party have knowledge of the ultimate fact of fraud. What is required is that it be in possession of such essential facts as will, if diligently investigated, disclose the fraud. The burden of diligent inquiry is upon the defrauded party as soon as he has such information as indicates where the facts constituting the fraud can be discovered.”

The learned county judge was of the opinion that before January 6, 1958 (six years before the action was begun) Koehler had available to him the previous minutes of the meetings of stockholders and directors of the corporation and thus “was placed in possession of facts which, if followed by diligent inquiry, would have disclosed a fraud, if any existed.”

Koehler was elected a director in 1957 and presumably had access to all the corporate records then if not before. We find nothing, however, which came to his attention as stockholder or director which should have alerted a reasonable man in his position to make a further search. Surely one in possession of a stock certificate whose rights as a stockholder appear to be recognized by all concerned would ordinarily assume without further inquiry that the shares evidenced by the certificate were valid.

The only information in the entire record which suggests that Mr. Utech owned 188 (or 189) shares after the corporation sold 60 shares to others in April, 1954, is contained in the Utech probate proceeding. Although Mr. Koehler or his counsel ultimately did look in that record, we know of no fact which should have alerted Mr. Koehler to look there before he did, and, in any event, the inventory was filed February 18, 1959, less than five years before this action was begun.

Accordingly we are unable to affirm the judgment on the basis that the action was barred by the running of the period of limitations.

In analyzing the decision of the county court with respect to the running of limitations, however, we have necessarily -considered everything which was before the court on the motion for summary judgment. We conclude that defendants were entitled to summary judgment upon the theory first presented to the county court.

The crux of the matter is whether Charles Utech transferred 60 shares of his stock to the corporation on April 6, 1954. If he did, it is undisputed that the 20 shares issued to Koehler were valid and authorized. The following corporate records are relevant:

(1) The minutes show that a special meeting of the board of directors was held April 6, 1954. There was a waiver of notice, signed by Loraine Utech and Chas. Utech. One of the purposes of the meeting, recited in the waiver was:
“. . . for the purpose of accepting from Chas. Utech his stock certificate Numbered Five (5) for 189 shares of stock in this corporation and exchanging it for stock certificate Numbered Ten (10) plus the sum of Three Hundred Dollars as compensation in full payment for the Sixty (60) shares of stock sold thereby to this Corporation.”
At the meeting, the following resolution was adopted:
“ ‘That the offer of Chas. Utech to exchange this stock certificate Numbered Five (5) for 189 shares of stock in this Corporation and accept in its place stock certificate Numbered Ten (10) for 129 shares of stock in this Corporation plus the sum of Three Hundred Dollars ($300) as payment in full for the difference of Sixty (60) shares of said stock, be and the same is hereby accepted; that the offer be consummated forthwith.’ ”
(2) A written offer to purchase, dated April 13, 1954, was signed by Koehler and two others, each offering to purchase 20 shares. The minutes show a special meeting of the board on that date. There is a waiver of notice, signed by Loraine and Charles, and a resolution accepting the offers was adopted. Loraine signed the minutes as secretary, and Charles signed an attestation as chairman.
(3) A copy of a stub in the corporate stock book shows that Certificate No. 10 was issued to Chas. Utech on April 20, 1954, for 129 shares. It indicates that these 129 shares were part of 189 shares originally represented by Certificate No. 5. The stubs for other certificates were not presented, but there is nothing to suggest that they were inconsistent in any way with the information on the stub of Certificate No. 10. Mr. Koehler presented a copy of the certificate issued to him. It bore number 8; was dated April 20, 1954, the same as the stub of No. 10, and was signed by Loraine A. Utech, secretary, and Chas. Utech, president.

Plaintiff Koehler has produced nothing which directly challenges the accuracy of the corporate minutes or other records, and on their face they permit no inference except that Chas. Utech sold 60 shares of his stock to the corporation and the corporation resold them to Mr. Koehler and two others. The corporation needed cash. Utech received $300 for his stock, and the three new stockholders paid in $6,000 for the same shares. No claim has been made that the corporation could not, under the circumstances existing, acquire and resell the 60 shares upon these terms. The shares were sold for full par value. The transactions did not increase the total number of shares outstanding.

These records are sufficient to meet the statutory standard for summary judgment for a defendant: “. . . such eviden-tiary facts, including documents or copies thereof, as shall show that his denials . . . are sufficient to defeat the plaintiff. ...”

Mr. Koehler contends, however, that the inconsistent statement of Mrs. Haechler, made in the probate proceedings, is a fact “sufficient to entitle him to a trial.”

Where a party moving for summary judgment relies upon a particular assertion in the affidavit of a prospective witness as establishing his right to summary judgment, proof of a prior statement by the prospective witness, inconsistent in a material respect, is ordinarily sufficient to entitle the opposing party to trial, and defeat the motion for summary judgment. Here, however, the moving party is relying upon documentary proof and there is no direct attack on the authenticity or accuracy of the documents. Mrs. Haechler has explained, in an affidavit, that the assertion of ownership of 188 shares rather than 129 shares was a mistake. The shares were considered as having no value, and the number of shares reported was approximately the same as the number represented by the old certificate. One could readily appreciate how the mistake could occur.

Under the circumstances, we do not consider the assertion in the probate proceeding as impeachment of the corporate records. It may suggest that the old Certificate No. 5 was not endorsed and delivered so as to complete a transfer. But even so, Mr. Utech would have been estopped from claiming continued ownership. He had participated in the meetings of the board of directors on April 6 and 13, 1954, signed the minutes, and signed the certificate issued to plaintiff.

We conclude that defendants sufficiently established by documentary proof that there was no issuance of stock in excess of the number of shares authorized, and that plaintiff did not show facts entitling him to trial.

By the Court. — Judgment affirmed.

Hallows, J., took no part.

        O’Dell v. Burnham (1884), 61 Wis. 562, 569, 21 N. W. 635.

        Milwaukee Western Bank v. Lienemann (1961), 15 Wis. (2d) 61, 65, 112 N. W. (2d) 190.

       Sec. 270.635, Stats.

        Foryan v. Firemen’s Fund Ins. Co., ante, p. 133, 133 N. W. (2d) 724.

       See secs. 183.01 (1), 183.09, and 183.10, Stats.


author: Per Curiam.

text:
    State, Plaintiff, v. Coleman, Defendant.

      June 7, 1963

    April 9, 1965.

      For the plaintiff there was oral argument by Rudolph P. Reges of Monroe, counsel for the Board of State Bar Commissioners.
    For the defendant there was oral argument by John Bosshard of La Crosse.
   Per Curiam.

The defendant John S. Coleman is an attorney, age forty-six. He is married and has a family. After graduation from the University of Wisconsin he was admitted to the bar in 1942. He was discharged from the Marine Corps after serving with distinction in the South Pacific. He served as district attorney of La Crosse county for two terms, ending with 1950, and since that date has practiced law in La Crosse. He has earned a reputation for honesty and competency. His counsel presented affidavits of judges before whom he appears attesting his ability and integrity.

Upon conviction of failure to make federal income-tax returns, defendant was sentenced to thirty days’ imprisonment on one count. Imposition of sentence on the other two counts was suspended and defendant was placed on probation for two years.

On June 28, 1963, this court entered an order finding that defendant’s failure to make federal income-tax returns constituted unprofessional conduct and subjected him to discipline by this court. We noted that representations filed on behalf of defendant suggested that his tax difficulties arose out of an unresolved personal problem, and the court reserved final disposition until further report thereon.

It now appears from a report of the board of bar commissioners that defendant’s continuation in the practice of law does not endanger the interests of his clients and the public.

Upon consideration of all the circumstances, we deem a reprimand and imposition of a portion of the costs sufficient discipline in this instance.

Therefore, it is ordered and adjudged, that the defendant be reprimanded for his unprofessional conduct in failing to timely file his federal income-tax returns for the years 1957, 1958, and 1959, and that he pay $300 toward the costs and expenses of these proceedings, including the fees and disbursements of the attorney for plaintiff.

        State v. Roggensack (1963), 19 Wis. (2d) 38, 119 N. W. (2d) 412; State v. Bunge (1963), 20 Wis. (2d) 493, 122 N. W. (2d) 369.

       See State v. Bunge, supra, footnote 1, for the general principles considered.


author: Wilkie, J. Per Curiam

text:
    Hope Acres, Inc., Appellant, v. Harris and others, d/b/a Harris Port Estates, Respondents.

      March 29

    April 27, 1965.

      For the appellant there was a brief by Sherman E. Stock of Milwaukee, attorney, and Mark M. Camp of Wauwatosa of counsel, and oral argument by Mr. Camp.

    For the respondents there was a brief by Frank, Karl & Hiller, attorneys, and Myron B. Kats of counsel, all of Milwaukee, and oral argument by M. P. Frank.

       Motion for rehearing denied, without costs, on June 25, 1965,

   Wilkie, J.

Six issues are presented on this appeal:

First, did the trial court err in finding that interest commenced, according to the agreement, upon F. H. A. approval of the subdivision ?

Second, did the trial court err in determining that December 1, 1961, was the date of final F. H. A. approval of the subdivision ?

Third, did respondents breach the agreement by refusing to convey certain lots beginning in July, 1962 ?

Fourth, should accrual of interest and running of time to exercise option be tolled ?

Fifth, did appellant sufficiently prove damages resulting from respondents’ refusal to convey lots ?

Sixth, did the trial court err in determining responsibility for the sidewalk assessments ?

This whole controversy arises out of the agreement of March 17th, the addendum to that agreement, and the conduct of the parties in connection with those agreements, all relating to the development and sale of Harris Port Estates and the adjoining subdivision. After a long trial to the court, findings and conclusions were entered by the court, many of which are put in issue on this appeal. Of course, in reviewing these findings of the trial court, none will be upset unless they are against the great weight and clear preponderance of the evidence.

Interest on Unpaid Balance.

Paragraph four of the basic agreement calls for interest to be paid:

“. . . on the unpaid balance of the aggregate purchase price twelve months from the date of final Subdivision approval by municipality and F. H. A. and approved by State of Wisconsin, improvements are completed and accepted by the City of Port Washington.”

However, the second paragraph of the addendum provides :

“Paragraph Four in offer to purchase is amended to read that interest of six percent (6%) per annum on the unpaid balance of the aggregate purchase price from time of final subdivision approval by municipality and approved by state of Wisconsin and F. H. A. approval and improvements completed and accepted by City of Port Washington. . . .”

The trial court found that the addendum controlled the commencement of interest on the purchases in the original subdivision, and that interest was to run from the time of F. H. A. approval of the subdivision and not from one year after such approval. Relying on the doctrine that qualifying phrases refer to the next preceding antecedent, appellant contends that the provision relied on by the trial court pertains to the first paragraph of the addendum, which in turn deals with an option for the purchase -of land in an entirely different subdivision and not to paragraph four of the agreement. However, this rule of construction cannot be invoked if “the context clearly shows the contrary.” That the provision in question expressly recites that, “Paragraph Four in offer to purchase is amended to read . . .” without specifically referring to the other paragraph demonstrates that a qualification of the preceding paragraph was not intended.

Appellant next contends that evidence of surrounding circumstances, practical construction by the parties, and declarations of the parties indicate that interest was to start a year after F. H. A. approval. In order to resort to this evidence, the contract must be ambiguous. Had there been two provisions in the agreement, one declaring that interest was to begin a year from an event and the other requiring commencement at the time of the event, the agreement would clearly be ambiguous. But the paragraph which was inserted in the addendum specifically stated that the previous reference to the running of interest was to be amended. Thus there is nothing ambiguous about the terms of the agreement on this particular point. Even assuming ambiguity, the evidence in the record is insufficient to shed any light on the meaning to be attributed to the conduct of the parties.

There was testimony that respondents had demanded interest payments prior to December 1, 1961, the time from which the court ultimately found it was to have run. At least one later demand was made. This is consistent with their position that interest was to begin then. On the other hand, appellant refused to pay any interest. This is in accord with Lesperance’s version of the terms. Other testimony concerning the interpretation and construction of the agreement by the parties is likewise of little value because it is either contradictory, self-serving, or both.

In arriving at its decision, the trial court placed weight on the fact that the secretary of Hope Acres, Joseph W. Restle, was not called to testify. Appellant contends that this was error because Restle did not participate in the negotiation which produced the final agreement. However, the record discloses that Restle played a significant role in the discussions. Lesperance testified that the March 17th agreement which “Joe Restle had negotiated” was not acceptable to him. Lesperance added that “the strike-outs and substitutions [in the March 17th agreement] were at my direction either done by my secretary or Joseph W. Restle . . . .” There are many other similar references in the testimony to situations where Restle participated in contract discussions, both before and after its execution.

It cannot be said that the finding of the trial court is against the great weight and clear preponderance of the evidence.

F. H. A. Approval.

The addendum called for interest on the unpaid balance “from time of final subdivision approval by municipality and approved by state of Wisconsin and F. H. A. approval and improvements completed and accepted by City of Port Washington.” The trial court found that all these conditions had been met by December 1, 1961. Appellant assails this finding in regard to the F. H. A. approval.

In the first place, appellant argues that the agreement calls for an unconditional commitment before the interest provision is even triggered. Not only does the agreement fail to expressly call for this, but according to Robert Fetherston, the assistant director of F. H. A. for Wisconsin, an “unconditional commitment” would be impossible to obtain in the present case. The agreement merely requires “approval” and in the F. H. A. vernacular, this means “acceptance.”

Appellant next contends that the F. H. A. issued a subdivision report on July 1, 1961, and that compliance was not had with certain requirements contained in that report until much later than December 1, 1961. It is true that the F. H. A. noted on the report the dates the particular requirements were complied with and that many of these dates were later than December 1, 1961, but testimony showed that these notations were not designations of the exact time of compliance, but were merely affixed by F. H. A. as a matter of routine to show when they learned that the requirements had been met. Furthermore, although the date of compliance with one or more of the requirements may have been later than December 1st, there was no evidence to show that the F. H. A. approval could not have been obtained by that date if a concerted effort had been made to obtain the approval.

According to the report, a subdivision plat had been received as of August 8, 1962. Fetherston testified in effect that this date was unimportant since the F. H. A. actually had knowledge that the requirement had been satisfied — which is all the plat would show — prior to December 1, 1961.

Several separate specifications relating to utilities and street improvements were labeled “city letter” and dated as having been performed in September of 1962. The words “city letter” mean that correspondence had been received from the municipality involved stating compliance with the condition. When asked whether this was the date the things were done, Fetherston testified:

“I can’t say definitely that that is the date this work was done. It might have been done prior to this, but that is the time we received our notice and our condition was satisfied so far as our local office was concerned.”

Fetherston was then asked:

“Now, with this subdivision report before you, I am going to ask you a hypothetical question. Assuming an acceptable borrower, assuming compliance by the builder with F. H. A. construction standards, could Mr. Lesperance have successfully processed an application for F. H. A. insurance on or about December 1, 1961 ?”

Appellant’s counsel objected on the grounds that the hypothetical did not include all the factors. Counsel was permitted to elaborate as follows:

“The missing factors being that all of the conditions which are required in Exhibit 5 and which were shown not to have been accomplished until after December 1, 1961, remained unsatisfied.”

Fetherston then answered:

“Our office under those circumstances could have issued a firm commitment in the name of the buyer or the borrower. Of course, before we would permit final endorsement of the mortgage note that would be the result of this commitment, we would want satisfactory evidence that the required improvements had been performed or put in, or we had assurance they were going in. In other words, we could issue the commitment for insurance but it would be predicated upon compliance with our subdivision report.”

He further testified that the “city letters” are not required before the issuance of the request for the final compliance report. Appellant emphasizes Fetherston’s statement on cross-examination that the final compliance inspection report could not have been issued nor a note endorsed on December 1st on the basis of the status of affairs as reflected by the July 1st report. But Fetherston had never testified that the note would have been endorsed or the final report issued on December 1st. Rather he explained that a “commitment” could have been granted by that date and the note endorsed and the report issued once the proper proofs had been filed.

Appellant also argues that the subdivision would not have been approved (accepted) because special assessments were not paid until February of 1963. In fact, however, respondents paid the assessments in three instalments, the first in December of 1961 pursuant to an arrangement with the city of Port Washington. There is no affirmative testimony in the record to the effect that there would nonetheless have been acceptance. On the other hand there is no testimony that payment in this manner would be fatal to an F. H. A. commitment.

Despite the conflicting evidence, again it cannot be said that the trial court’s finding as to the date of F. H. A. approval is against the great weight and clear preponderance of the evidence.

Breach of Contract by Respondents.

By letter of July 11, 1962, respondent Raymond Harris informed Joseph Restle that if certain interest and principal payments were not received by July 13th, Hope Acres, Inc., would be considered in default of contract, and the contract of March 17th “will then be terminated.” On July 14th Harris wrote Restle that the contract was terminated. The trial court held that the contract was not terminated by this correspondence because respondents had not given reasonable notice for payment. Appellant argues that respondents’ repudiation and their subsequent failure to convey lots constituted a breach. Yet appellant closes with the revelation that:

“In the instant case, repudiation of the contract by the defendants was rectified by the decree for specific performance adjudged in the trial court.”

A more-accurate appraisal could not have been made. Appellant won a decree for specific performance and its position could not be improved here by a holding that there was a breach of contract by respondents.

Option to Purchase Additional Subdivision and Tolling of Interest on Purchase of Lots in Harris Port Estates.

Appellant was given an option by the addendum for one year from the acceptance of the improvements in the Harris Port Estates by the city to purchase lots in an adjacent land development. Having found that Port Washington accepted the improvements on December 1, 1961, the trial court determined that the option expired on December 1, 1962, but made no finding as to whether appellant had failed to exercise it.

However, appellant, through Russel Lesperance, attempted by wire to exercise the option on July 13, 1962, well within the provided time period, but respondents would not convey the lots. Appellant is now desirous of obtaining the additional land. Since it was the respondents who refused to perform and since the trial court granted specific performance, the interests of justice demand that appellant be allowed a reasonable time to exercise the option.

Appellant similarly wants interest tolled from July 14, 1962, to the date the sale of parcels of Harris Port Estates is consummated in accordance with the specific-performance decree of the trial court because appellant’s repeated demands for conveyance subsequent to that date fell on deaf ears. Allowing respondents to recover interest during this time permits them to profit by their delay. In all fairness, interest should be tolled on these sales.

On remand, the trial court should modify the judgment herein so as to reinstate the option and to toll the interest as herein provided and on such terms as the court shall determine.

Appellant’s Alleged Damages.

The trial court decided that appellant had failed to introduce sufficient evidence to prove' any damages. Appellant asserts that proper proof was made in three different respects. First, a compendium of promotional, maintenance, and personal expenses was introduced into evidence without objection by respondents. At no time, however, did appellant produce evidence establishing that, any of this expense was actually lost due to the refusal of respondents to convey the lots. It is impossible to glean from the record which of the expenses listed in the compendium amounted to damages and which were ordinary business outlays not connected in any way to respondents’ conduct or payments related to the sale of lots which respondents had conveyed.

Appellant relies on Altschuler v. Atchison, Topeka & Santa Fe R. Co. and Essock v. Mawhinney. In Essock, however, there was no doubt — where here there is — that the defendants had caused the damages prayed for. The only question was as to the amount of damages sustained. Alt-schuler merely stands for the general proposition that damages which arise naturally from a breach of contract or which are reasonably in contemplation of both parties at the time of the contract can be recovered. In that case there were specific damages which, on the facts, must have followed from the breach. Here appellant has failed to show that any of the expenses became damages after respondents’ refusal to convey lots.

Second, appellant claims loss of profits on each of 10 lots which third parties had contracted to purchase, but which could not be conveyed because respondents refused to deliver deeds. The 10 contracts involved were between the various purchasers and the Russ Lesperance Real Estate Corporation. The trial court would not allow introduction of the contracts because they involved writings between parties who were not involved in the case.

Appellant Hope Acres, Inc., argues that an arrangement between it and the real-estate company makes appellant the real party in interest pursuant to sec. 260.13, Stats., for the purpose of recouping any loss on the contracts. But appellant has not sustained the burden of proving that it is the real party in interest. No evidence was introduced of any agreement between the two firms showing that Hope Acres had the “right to control and receive the recovery” of the proceeds. The business decision having been made to treat the Russ Lesperance Real Estate Corporation as the seller to the third party purchasers, it became necessary that the real-estate company be joined in the suit as a party plaintiff in order to recover any lost profits on these contracts. The contracts were properly excluded from evidence and cannot be considered for ascertaining lost profits.

Russel Lesperance testified as to the amount of loss sustained on the previously mentioned contracts. This testimony is likewise immaterial to the issue of damages because it was not established that Hope Acres, Inc., actually suffered the loss.

Third, appellant asserts that it lost money on contracts to build houses on these 10 lots. The contracts were between the third parties and either Russ Lesperance Builders, Inc., or Award Builders. For the reasons given in the three previous paragraphs any evidence in regard to these losses was inadmissible.

Sidewalk Assessment.

The original judgment required respondents to pay for sidewalk improvements. After reconsideration, the trial court ordered the judgment modified to hold respondents responsible for sidewalks only to the extent that they had made arrangements with the city to do the work. If no arrangements were made, the respondents were liable only for the sidewalks installed up to the time the agreement was consummated. Both parties seek review from this portion of the judgment.

There is little evidence in the record on the whole question. In conjunction with testimony on an alleged lost sale Les-perance testified that Hope Acres “still had to supply at [its] expense the curb, gutter and sidewalk.” This testimony is the only positive evidence of responsibility in the record. The agreement lacks any express sidewalk provision. Respondent Harris Port Estates was to be liable for “sewer, water, sewer and water laterals to lot line, road . . . , and gas and electric utilities.” Paragraph five directed the purchaser to “pay for improvements for curb and gutter if and when required.” Paragraph eleven imposed the burden on respondents to “pay all taxes and special assessments.” Although the correspondence and the testimony of the city engineer establish that the cost of the sidewalks was to be assessed against either the subdivider or the owner, there is nothing to indicate if any agreement was made or assessments levied.

We are satisfied that the whole subject of responsibility for sidewalks was not given sufficient attention and that pursuant to sec. 251.09, Stats., in the interests of justice a new hearing should be held on this limited issue and new findings and conclusions and amended judgment should be entered thereon.

By .the Court. — Judgment as modified by the trial court reversed by striking any provision therefrom pertaining to sidewalks; cause remanded for further proceedings as to sidewalks, option to purchase, and tolling of interest, such proceedings to be not inconsistent with this opinion; judgment affirmed in all other respects; no costs on this appeal to either party.

The following memorandum was filed June 25, 1965.

Per Curiam

(on motion for rehearing). On July 13, 1962, Hope Acres, Inc., through' Lesperance, its president, telegrammed respondent Raymond Harris to arrange a meeting to settle their accounts and for “the exercising of option as per our contract ... , if option is to be exercised.” In the original opinion, this court determined that by this wire Hope Acres had “attempted ... to exercise the option” and directed the trial court, on remand, to “reinstate the option.” It is clear that appellant tried to get negotiations on the option started. However, respondents contend, for the first time on this rehearing, that this telegram was not an effectual exercise of the option, and that, in any event, the option is void for lack of definiteness.

Generally, this court will not consider an argument raised for the first time on rehearing. However, since the case is being remanded on the matter of sidewalks and in the interests of justice, for further proceedings on the option, because important questions are raised as to the validity of the option, and because there is doubt as to whether the sending of the telegram was a sufficient exercise of the option, the trial court on remand should consider these additional questions: First, was the option valid? Second, assuming the option was valid, was the option exercised by the telegram of July 13th? Third, assuming that the option was valid, but was not exercised, should appellant nonetheless be given a reasonable opportunity to exercise the option at this time, because the subsequent conduct of the respondents in repudiating the contract made it impossible for appellant to follow up the telegram and exercise the option in accordance with formal legal standards ?

No other matters raised on the motion for rehearing require comment. Motion denied without costs.

        Klapps v. American Ins. Co. (1965), 26 Wis. (2d) 664, 133 N. W. (2d) 248; Guinther v. Schucht (1965), 26 Wis. (2d) 97, 131 N. W. (2d) 861.

        Wussow v. State (1936), 222 Wis. 118, 267 N. W. 56.

       Id. at page 131.

        Northwest Sand & Gravel Co. v. Schlieper (1962), 17 Wis. (2d) 639, 117 N. W. (2d) 588.

       Relying on Bowen v. Industrial Comm. (1941), 239 Wis. 306, 1 N. W. (2d) 77, and Booth v. Frankenstein (1932), 209 Wis. 362, 245 N. W. 191.

       Citing Buntrock v. Hoffman (1922), 178 Wis. 5, 189 N. W. 572.

       (1913), 155 Wis. 146, 144 N. W. 294.

       (1958), 3 Wis. (2d) 258, 88 N. W. (2d) 659.

       “260.13 Real party in interest must prosecute. Every action must be prosecuted in the name of the real party in interest except as otherwise provided in section 260.15.”

        Marshfield Clinic v. Doege (1955), 269 Wis. 519, 523, 69 N. W. (2d) 558; Chase v. Dodge (1901), 111 Wis. 70, 86 N. W. 548.

        Uren v. Purity Dairy Co. (1948), 252 Wis. 446, 32 N. W. (2d) 615, 33 N. W. (2d) 213.