Bublitz v. Matulis

34 Wis. 2d 23 (1967)

BUBLITZ and others, Respondents, v. MATULIS and others, Appellants.

Supreme Court of Wisconsin.

February 8, 1967.

Prosser, Zimmermann & Wiedabach of Milwaukee for the appellants.

Bernstein, Wessel & Lewis of Milwaukee for the respondents.

PER CURIAM (on a motion to dismiss the appeal).

Sec. 274.11 (1), Stats., provides an appeal is taken by serving a notice of appeal on each party adverse to the appellant upon the appeal who appeared in the action or proceeding and by filing a notice of appeal with the clerk of the court in which the judgment or order appealed from is entered. With exceptions not important *24 here, the time within which an appeal may be taken to this court from any judgment or order is limited to three months from service of the notice of entry of judgment or order and to six months from the date of the entry of the judgment or order if no such notice is served. Sec. 274.01. In this case an order overruling a demurrer to the complaint was entered August 16, 1966, in the circuit court for Waukesha county and the plaintiffs served a notice of entry of the order on the defendants. The defendants served a notice of appeal on the plaintiffs within the three-months' period but did not file with the clerk of the circuit court until after the expiration of the three-months' period.

The defendants argue the failure to file the notice of appeal was a mere formality, which can be corrected by the invocation of sec. 274.32, Stats. We think not.

In 1963 this court changed the appeal procedure and required service of the notice of the appeal upon the adverse party and the filing thereof with the clerk of the court rather than service upon him. Both of these acts must be done within the prescribed time period to constitute a taking of an appeal. Since this procedure was not followed, the appeal was not timely taken and must be dismissed.

The motion to dismiss the appeal is granted.