Wiener v. J. C. Penney Co.

197 N.W.2d 756, 55 Wis. 2d 61, 1972 Wisc. LEXIS 967

• Court: Wisconsin Supreme Court
• Decided: June 6, 1972
• Docket: 344-349, 420, 455
• Status: Published

Opinion

Per Curiam.

These cases were brought on appeals from orders overruling demurrers. The demurrers were founded upon the proposition that for various reasons, both substantive and procedural, class actions for the recovery of usurious charges are not permissible in Wisconsin.

Subsequent to the filing of briefs and oral argument in this court, the Governor signed into law Senate Bill No. 3 of the special session of 1972. This bill on its face eliminates the allowance of penalties:

“138.06 (6) In connection with a sale of goods or services on credit or any forbearance arising therefrom prior to October 9, 1970, there shall be no allowance of penalties under this section for violation of s. 138.05, except as to those transactions on which an action has been reduced to a final judgment as of the effective date of this subsection (1972).”

In addition, the act, published May 11, 1972, purports to limit a refund or credit of interest paid since October 8, 1968, two years prior to this court’s decision in State v. J. C. Penney Co. (1970), 48 Wis. 2d 125, 179 N. W. 2d 641, to the excess over that allowed by law. It further appears to provide that an action may be brought only after individual notice to the seller. Upon nonpayment after a reasonable time, the seller “shall be liable in an individual action.” (Emphasis supplied.)

The effect, if any, of this statute on class actions of the type brought on these appeals was not and could not have been considered in the filed briefs. It is at least arguable that the legislature’s intent was to affect the type of cases now before us.

We believe that it would be fruitless to consider the issues as briefed without the trial court’s prior consideration of the scope of the new legislation and its effect upon plaintiffs’ causes of action.

The orders of the trial court are reversed, and the causes are remanded for further proceedings. The parties shall have the right to amend any and all pleadings as they see fit.