Notbohm v. Pallange

169 N.W. 557, 168 Wis. 225, 1918 Wisc. LEXIS 165

• Court: Wisconsin Supreme Court
• Decided: December 3, 1918
• Status: Published

Opinion

Per Curiam.

It is clear that under the provisions of sec. 2878, Stats. 1917, the constructive denial of the motion for new trial, resulting from the failure to decide the same' within sixty days after the rendition of the verdict, became an order denying the motion, of like effect as a formal order of denial. The statute, however (sec. 3069, Stats. 1917), gives no appeal from an order denying a motion for a new trial, and this court cannot give an appeal where the statute gives none.

Some suggestion was made that by reason of the subsequent formal order granting a new trial the constructive denial could not be followed by judgment and became in effect an order determining the action and preventing a judgment, hence an appealable order within the first subdivision of sec. 3069, supra.

Not so, however. If the sixty days expired without extension of the time by order and without waiver there was no jurisdiction tO grant the motion (Ward v. Smith, 166 Wis. 342, 165 N. W. 299), and the trial court will have no jurisdiction to^ proceed with a new trial, but only to proceed to judgment on the verdict.

The power of superintending control vested in this court provides an ample and speedy remedy where the trial court fails to perform an imperative duty and there is no adequate remedy by appeal. State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081; State ex rel. Mitchell v. Johnson, 105 Wis. 90, 80 N. W. 1104.

Appeal dismissed.