
    Wehr, Appellant, vs. Gimbel Brothers, Incorporated, Respondent, and another, imp., Appellant.
    
      October 27
    
    November 16, 1915.
    
    
      Judgment: When rendered: Oral announcement.
    
    1. The announcement of judgment from the bench is the judgment in fact, and the written judgment generally is merely the evidence thereof; but it should be certain that the court intends to pronounce judgment and not merely to make a preliminary order which is expected to result later in a judgment.
    2. An entry in the clerk’s minutes stating that defendant’s motion to dismiss the complaint was “granted as per findings to be filed,” and entries at a later term showing continuances of “the matter as to a rehearing,” together with unsigned and unfiled findings of fact found among the papers in the case, are held to show that judgment was not pronounced at the time of the first entry.
    Appeals from orders of tbe circuit court for Milwaukee county: LaweeNce W. Halsey, Circuit Judge.
    
      Dismissed.
    
    For tbe appellants there was a brief by Kronshage, McGovern & Hannan, attorneys for Henry Wehr, and Lines, Spooner, Bilis & Quarles, attorneys for Wehr Building Company, and oral argument by F. B. McGovern and George Lines.
    
    
      For tbe respondent there was a brief by Gliclcsman, Gold & Gorrigan, attorneys, and Thomas M. Kearney, of counsel, and oral argument by Nalhan Gliclcsman.
    
   Winslow, C. J.

Tbe appeals here aré by tbe plaintiff, Wehr, and tbe interpleaded defendant tbe Wehr Building Company from orders made on motion of tbe defendant Gim-bel Brothers interpleading tbe Wehr Building Company and tbe city of Milwaukee as defendants in tbe equitable action originally brought by said Wehr against tbe Gimbel Brothers, and allowing tbe said Gimbel Brothers to serve a cross-complaint in equity against Wehr and tbe interpleaded defendants.

Tbe first question arising in tbe case is whether tbe orders are appealable. Tbe only ground upon which tbe appellants attempt to sustain their appealability is that they are final orders affecting a substantial right made upon summary application after judgment and hence are within sub. (2) of sec. 3069, Stats., governing appealable orders. It seems quite clear that there is no other provision of tbe section under which it can be claimed that tbe orders are appealable. Tbe question is therefore whether judgment bad previously been rendered in tbe action. It is admitted that no formal written judgment bad been filed, but it is claimed that judgment bad been pronounced from tbe bench and that under tbe decisions of this court ending with tbe case of Wallis v. First Nat. Bank, 155 Wis. 533, 145 N. W. 195, this was an effective final judgment closing tbe case.

Tbe determination of this question rests chiefly upon tbe proper construction to be given to certain entries upon tbe minutes of tbe clerk of tbe court which appear in tbe record.

Tbe action was originally brought by Henry Wehr in June, 1901, against bis tenant, tbe Gimbel Brothers corporation, to prevent it from erecting a building upon tbe leased premises, and tbe question involved related to tbe location of tbe east line of the demised premises upon the Milwaukee river, and was another phase of the controversy involved in the case of Milwaukee v. Gimbel Bros. 130 Wis. 31, 110 N. W. 7. It is not considered that it would he helpful here to state the details of the litigation. An answer was filed and the cause came on for trial May 21, 1909. The following entry appears upon the daily minutes of the clerk upon that day:

Henry Wehr vs. I-Gimbel Brothers.
May 21, 1909. ' Before Hon. L.. W. Halsey.
This action being on the day calendar and reached in its regular order was called for trial. Van Alstine & Killi-lea appearing for plff., and Winkler, .Elanders, Bottum & Eawsett appearing 'for deft., trial proceeded, witness sworn, testimony closed, deft, moves that plff’s complaint be dismissed upon the merits with costs, motion granted as per findings to be filed.

Ho further entries appear in May or June, but in July the following entries appear in the order given, viz.:

Henry Wehr vs. Gimbel Brothers.
July 16, 1909.
ter as to a rehearing, be continued to July 21, 1909. The court by request of H. J. Killi-lea, plaintiff’s counsel, and upon the court’s own motion, orders, that the mat-
Henry Wehr ' vs. > Gimbel Brothers.
July 21, 1909. Before Hon. L. W. Halsey.
The matter as to a rehearing continued to July 22, 1909.
Henry Wehr [ Yg [ Gimbel Brothers. J
July 22, 1909.
The matter as to a rehearing, continued to such time as may be set by the court, upon application. Oourt so orders.

All these entries appear in substantially the same form in the clerk’s docket of the case.

Neither findings nor judgment were ever signed or filed, hut an unsigned paper was found with the bundle of papers in the case, indorsed “Findings,” in which, after the fact of the trial was recited, it was stated that “I find that the allegations of the complaint are not sustained by the evidence and that the plaintiff was not entitled to the injunction,” followed by a conclusion of law to the effect that the complaint should he dismissed on the merits with costs and an order that judgment be entered.

This paper was dated May 21, 1909, bore the name of the law firm which had appeared for the defendant in the case, but was never filed, and had upon the outside, written in pencil, the word “Hold.” No oral evidence was given on either side concerning the matters covered by the journal entries.

No further steps were taken in the cause until January 18, 1915, when the motions which resulted in the orders appealed from were made. .

We fully recognize the principle that the announcement from the bench is the judgment in fact and that the written judgment generally is merely the evidence thereof. Wallis v. First Nat. Bank, 155 Wis. 533, 145 N. W. 195, and cases there cited. It should be quite certain, however, that the oral pronouncement is intended to be the judgment and not merely an announcement of the opinion of the court or an indication of what the judgment is to be; in other words, it should be certain that the court intends to pronounce judgment and not merely to make a preliminary order which is expected to result in a judgment at a later period. It is to be remembered that all parties expect a written judgment to be entered and that in equity cases the statute contemplates and requires that findings be signed and filed before judgment is entered.

Taking the clerk’s minutes of the 21st of May, it seems to us fairly certain that they indicate, not that judgment was then presently announced, but tbat tbe trial judge announced simply tbat tbe motion to dismiss was granted and tbat findings would be drawn later, after wbicb judgment would be formally entered.

Tbe unsigned findings ratber tend to support tbis conclusion, as they seem to indicate tbat they were prepared and were unsatisfactory and bence never signed. Tbe entries in July showing tbat a possible rebearing of tbe case was under, consideration are also persuasive on tbe question. If judgment bad already been entered there could be no efficient rehearing without setting aside tbe judgment, and nothing is said about such a motion. Moreover, tbe term at wbicb tbe supposed judgment was rendered bad expired and it could not be changed except under tbe provisions of sec. 2832, Stats., and no mention is made of any such motion.

Our conclusion is tbat tbe facts in evidence show tbat for some reason judgment was purposely delayed ratber than tbat it was pronounced.

It follows tbat tbe appeals must be dismissed

By the Court. — Appeals dismissed.  