Facts.
This is an appeal from an order granting a stay of proceedings under sec. 262.19, Stats., to allow plaintiff to commence an action in Ohio. The complaint was filed August 28, 1970. It alleged that plaintiff was in Milwaukee on August 19, 1968, for the purpose of being initiated into Sinai Court No. 35, Daughters of Isis, Cincinnati, Ohio, at the national convention of the Daughters of Isis in Milwaukee. It further alleged that defendant Lambert Sloan, the illustrious advisor for Sinai Temple No. 59 of the Shrine in Cincinnati, Ohio, stated at a special meeting of the members of Sinai Court No. 35 that there was a felony charge pending against plaintiff. Defendant Julia Sloan was identified as the wife of defendant Lambert Sloan and defendant James Duncan was identified as the illustrious potentate of Sinai Temple No. 59. It was alleged that the defendants, "including the defendant corporation through its agent," acted as part of the conspiracy to defame plaintiff. Special damages of $1,000 were alleged and punitive damages of $199,000 were demanded.
On September 25, 1970, a notice of special appearance was filed on behalf of the defendants, asserting that the circuit court for Milwaukee county had no jurisdiction of the subject matter. On September 29, 1970, motion to dismiss was filed which was based upon the special appearance. On April 8, 1971, Circuit Judge ELMER ROLLER signed a memorandum decision denying the motion to dismiss.
On May 3, 1971, a motion was made on behalf of the defendants under sec. 262.19, Stats., for a stay of proceedings so that trial could be held in Ohio. This motion was supported by the affidavits of the individual defendants stating that all parties as well as corporate records and their witnesses were in Cincinnati. The defendants agreed to waive the Ohio one-year statute of limitations which had run prior to the commencement of the Wisconsin action. The motion was accompanied by an answer denying the statement alleged to have been made by defendant Lambert Sloan. The answer also denied his presence at the meeting and any intent on the part of any defendant to injure or defame the plaintiff. An affirmative defense was raised that plaintiff's husband had been charged in the criminal matter and that in the course of evaluating plaintiff's application for membership in the Daughters of Isis, statements were made in confidence as to her husband, the social background of the family, and her suitability for membership. It was alleged that no statement was made which defamed the plaintiff and any statements made were believed to be true. A qualified privilege was asserted for the communications made at the meeting.
Judge ROLLER denied the motion for a stay on the ground that the corporate defendant had not waived the Ohio statute of limitations. Because of this he refused to transfer the case against it to Cincinnati. He reasoned it would be unfair to transfer the case against the individual defendants because this would in effect sever the actions and require trial in two different jurisdictions. An order denying a motion for a stay was signed on October 21, 1971. It was filed on December 23, 1971.
On August 17, 1973, plaintiff obtained an order to show cause from Circuit Judge RALPH PODELL why the answer of defendants should not be stricken and a default judgment entered against them. The ground for this motion was that a deposition was to have been taken in Cincinnati on March 24, 1973, by stipulation of the parties, and the individual defendants failed to appear. The stipulation had been reduced to writing and implemented by an order signed by Judge PODELL on February 20, 1973. The motion to strike was opposed on behalf of the defendants, and their motion for transfer of the case to Ohio was renewed. In support of the motion, the attorney for defendants stated that all defendants waived the Ohio statute of limitations.
On November 5, 1973, Judge PODELL signed an order denying the motion to strike and granting a stay of proceedings so plaintiff could commence an action in Ohio. The instant appeal was taken from that order. There is memorandum decision in the record, and there is no transcript of the proceedings on the order to show cause. After the appeal was taken, plaintiff's attorney withdrew because of a dispute over fees. The plaintiff has filed a pro se brief in this court.
ROBERT W. HANSEN, J.
The temptation is strong to affirm the order of the trial judge that is here challenged. It has much to recommend as an entirely appropriate resolving of the question of where this particular action is to be tried. However, there is a roadblock here to such affirmance that cannot be surmounted. That roadblock presents itself in the form of a prior and unappealed order of another circuit court judge in the same circuit denying a motion for stay of proceedings under sec. 262.19, Stats., to permit trial of the case in another state.
Ordinarily the only question to be resolved on a motion a stay of proceedings to permit trial in a different state is whether, as a matter of substantial justice, the particular trial should be tried to another forum. Such motion is to be filed with the answer or before it, and the issues are to be tried to the court in advance of the trial on the merits. There is no transcript or memorandum decision in the record before us, so we cannot say if the second order, entered by the second or successor judge, was entered before or after a trial before the first judge. The record does not show any motion for a new trial nor order granting one. Counsel for the defendants argues that the order granting a stay, granted by the second judge, was made after a "rehearing."
Sec. 262.19(1), Stats., provides: "If a court of this state, on motion of any party, finds that trial of an action pending before it should as a matter of substantial justice be tried in a forum outside this state, the court may in conformity with sub. (3) enter an order to stay further proceedings on the action in this state. A moving party under this subsection must stipulate his consent to suit in the alternative forum and waive his right to rely on statutes of limitation which may have run in the alternative forum after commencement of the action in this state. A stay order may be granted although the action could not have been commenced in the alternative forum without consent of the moving party."
Sec. 262.19(2), Stats., providing in part: "The motion to stay the proceedings shall be filed prior to or with the answer unless the motion is to stay proceedings on a cause raised by counterclaim, in which instance the motion shall be filed prior to or with the reply. The issues raised by this motion shall be tried to the court in advance of any issue going to the merits of the action and shall be joined with objections, if any, raised by demurrer or pursuant to s. 262.16. . . ."
The answer in this case was filed at the time of the first motion for a stay on May 3, 1971. Therefore, the second motion was not timely unless it was a motion for reconsideration of the first order.
The conclusion is compelled that such "rehearing" before the second judge was as to the order entered, twenty-three months earlier, by the first judge. It is permissible for a court to review its own orders and judgments at any time within sixty days after service and notice of entry but not more than sixty days after the end of the term of entry. Even within such sixty-day period, we do not see this statute as creating the right of a second judge to review an order entered by a first judge, at least not in the absence of a showing of unavailability of such first judge who entered the order sought to be reviewed. However, in the case before us, it appears that even the power of the first judge to review and reverse the order denying a stay of proceedings expired at the end of sixty days after the end of the term during which it was entered.
Sec. 269.46, Stats.
Id.
The initial order in this case, denying a stay of proceedings for the purpose of instituting action in another state, was filed on December 21, 1971. Such filing constitutes entry of such order. The term of court at which such order was entered commenced on the first Monday in October, 1971, and ran until the first Monday in January, 1972. Sixty days from the end of such term became the last day for making a motion for review under sec. 269.46(3), Stats. The defendants did not renew a motion for a stay of proceedings until September 17, 1973. Even if addressed to the first judge who entered the first denial of motion for a stay, that was too late. Not having been appealed from, the order denying a stay of proceedings became unreviewable sixty days after the end of the term in which it was entered.
Sec. 270.70, Stats.
Secs. 252.06 and 252.09(1), Stats.
By the Court. — Order vacated.