City of Appleton v. Sauer

74 N.W.2d 167, 271 Wis. 614, 1956 Wisc. LEXIS 422

• Court: Wisconsin Supreme Court
• Decided: January 10, 1956
• Status: Published

Opinions

Steinle, J.

The first question presented for determination is whether the instant order is appealable. This is a civil action to recover a forefeiture for violation of a municipal ordinance, and the rules of civil procedure apply. Oshkosh v. Lloyd (1949), 255 Wis. 601, 39 N. W. (2d) 772; South Milwaukee v. Schantzen (1950), 258 Wis. 41, 44 N. W. (2d) 628.

Sec. 274.33, Stats., provides in part :

“The following orders when made by the court may be appealed to the supreme court: . . .

“(3) When an order grants, refuses, continues, or modifies a provisional remedy. . . . [Italics supplied.]”

Sec. 269.57, Stats., provides in part:

“(1) The court, or a judge thereof, may, upon due notice and cause shown, order either party to give to the other, within a specified time, an inspection of property ... in his possession or under his control containing evidence relating to the action or special proceeding. ... If compliance with the order be refused, the court may exclude the paper from being given in evidence or punish the party refusing, or both. [Italics supplied.]”

In Hudson v. Graff (1948), 253 Wis. 1, 33 N. W. (2d) 174, it was held that an order requiring the defendant to produce under sec. 269.57, Stats., certain books and documents for the plaintiff’s inspection and examination, is ap-pealable under sec. 274.33 (3) as an order granting a provisional remedy. At page 2 in the opinion of that case, it was said:

“As this court said in Northern Wis. Co-op. Tobacco Poolv. Oleson, 191 Wis. 586, 592, 211 N. W. 923,—

“ ‘Sec. 4183 (now sec. 269.57) . . . provides a provisional remedy, and such an order is appealable under sec. 274.33, sub. (3).’

“That has been considered the established rule since Noonan v. Orton, 28 Wis. 386; Ellinger v. Equitable Life Assur. Society, 125 Wis. 643, 648, 104 N. W. 811.”

The question of whether an order granting or refusing inspection requested under sec. 269.57, Stats., is appealable is not to be confused with an order which refuses to limit or suppress an adverse examination scheduled pursuant to sec. 326.12; The right to an adverse examination is granted by statute and not by order of the court, so that an order refusing to limit or suppress an adverse examination does not grant or continue a provisional remedy.

It is manifest that the drunk-o-meter is relevant to the controversy and is “property” within the purview of sec. 269.57 (1), Stats., which permits an inspection of property. The term “property” is analogous to that of “thing.” Sec. 4096, at the time when Horlick’s Malted Milk Co. v. A. Spiegel Co. (1913), 155 Wis. 201, 144 N. W. 272, was decided, provided for the production at an adverse examination of “all papers, books, hies, records, things, and matters in the possession” of an adverse party. In construing the word “things” as used in the statute, the court in that case in part said (p. 216):

“The claim of the plaintiff is that these questions were improper for the reason that a party to a civil action is not entitled to an order for inspection of real or personal property in the possession of the opposing party in the absence of statute, and that sec. 4096, which provides for the production of ‘all papers, books, hies, records, things, and matters . . . may be compelled upon subpoena, . . 7 does not include physical objects. We think the construction of counsel is too narrow. The jars and contents, under the issues raised by the complaint, were doubtless among the most important matters in the case. The fact that they were physical objects did not exclude them from the terms of the statute. . . . The purpose of the statute is to get inspection of the evidence contained in the books, hies, records, and things. If the things, namely, the jars and contents, were relevant to the controversy, they come within the terms of the statute.”

The order of the court under attack here was appealable.

Evidence, such as was obtained by the city in its use of the drunk-o-meter in the case at bar, is admissible at the trial. There is nothing of record to indicate that the city does not intend to present the evidence obtained in this matter. Sec. 85.13 (4), Stats., provides in part:

“(4) Upon the trial of any action or proceeding arising out of acts alleged to have been committed by any person arrested for operating a motor vehicle while under the influence of intoxicants, the court may admit evidence of the amount of alcohol in the defendant’s blood ... as shown by a medical or chemical analysis of such defendant’s breath, blood, .urine, or saliva. For the purposes of this section: (a) Evidence that there was, at the time five hundredths of one per cent or less, by weight of alcohol in his blood, is prima facie evidence that the defendant was not in an intoxicated condition; (b) evidence that there was, at the time, more than five hundredths of one per cent and less than fifteen hundredths of one per cent . . .' is relevant evidence, but it is not to be given prima facie effect . . .; (c) evidence that there was, at the. time, fifteen hundredths of one per cent or more, by weight of alcohol in his blood, 'shall be admitted as prima facie evidence that the defendant was in an intoxicated condition, but shall not, without corroborating physical evidence thereof be sufficient upon which to find the defendant guilty of being under the influence of intoxicants.”

It cannot be said that the defendant Sauer was not entitled, as a matter of law, to the inspection which he sought. Sec. 269.57, Stats., provides that the court may grant an inspection of this kind. An application for inspection of property under sec. 269.57 is addressed to the discretion of the trial judge — a sound discretion guided by law. The trial judge’s statement to the effect that the defendant was not entitled to an inspection of the device under either sec. 269.57 or 326.12, or under any other statute or law of the state, indicates that he was of the opinion that there existed no authority on his part to grant, limit, or suppress the inspection. In such regard the court acted under a mistaken view of the law, and there was error. Churchill v. Welsh (1879), 47 Wis. 39, 54, 55, 1 N. W. 398. The court possessed power to exercise a sound discretion with reference to the petition. Plaving failed in such particular, the order must be reversed, and the cause remanded with direction that the trial court exercise his discretion and grant, limit, or deny the application. Should the petition be granted in a general or limited manner, then, were compliance of the court’s order refused by the city, the court might with propriety exclude as evidence upon the trial any reference to the device or its use in testing the condition of the defendant, or punish by contempt process, or both.

By the Court.- — -Order reversed, and cause remanded for further proceedings in accordance with law.