COURT OF APPEALS DECISION DATED AND FILED December 21, 2010 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. Admiral Insurance Company and Chubb Custom Insurance Company appeal a judgment dismissing their claims against their insured, Paper Converting Machine Company. We initially decided the appeal on the merits, including the following language in a footnote:
Admiral and Chubb purport to appeal from a judgment entered July 8, 2009 that, “[b]ased on the court’s Decision of March 26, 2009, with respect to the parties’ cross-motions for summary judgment[,]” dismissed both parties’ claims against Paper Converting. However, the March 26, 2009 written “Decision and Order” already explicitly stated that the circuit court denied Admiral’s and Chubb’s motions for summary judgment, granted Paper Converting’s motion for summary judgment and that “[t]he Court hereby orders this case dismissed.”
Thus, it appears the March 26 Decision and Order was
the Wis. Stat. § 808.03(1)(a)
appealable final order. See Wambolt
v.
However, because Paper Converting did not object to the untimely filings and filed a response brief, it has waived any issue of our jurisdiction over the appeal. See Wis. Stat. § 807.07(1) (“[T]he respondent shall be deemed to have waived all objections … to the jurisdiction over the parties of the appellate court, unless the respondent moves to dismiss such appeal before taking or participating in any other proceedings in said appellate court.”); State v. Van Duyse, 66 Wis. 2d 286, 291, 224 N.W.2d 603 (1975) (timeliness of appeal goes to jurisdiction over parties).
However, we withdrew our decision on our own motion.
¶2 In Van Duyse, the supreme court held:
We conclude the holding in [Scheid v. State, 60
State v. Van Duyse, 66
¶3 A court must raise
questions of subject matter jurisdiction even if the parties do not, and
subject matter jurisdiction cannot be obtained by a party’s waiver or
consent. State ex rel. Skinkis v. Treffert,
90
By the Court.—Appeal dismissed; costs denied.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1]
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.