COURT OF APPEALS DECISION DATED AND RELEASED MAY 7, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2157
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
In the Matter of the
Foreclosure of Tax
Liens, Pursuant to
Section 75.521
Wisconsin
Statutes by Shawano
County,
List of Tax Liens for
the
years 1983 through
1987.
(Proceeding in Rem
1988,
Number Thirteen)
DONALD MINNIECHESKE
Appellant,
v.
SHAWANO COUNTY,
Respondent.
APPEAL from a judgment
and an order of the circuit court for Shawano County: EARL W. SCHMIDT, Judge. Appeal
dismissed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Donald Minniecheske appeals (1) a tax lien foreclosure
judgment issued on his default and (2) a postjudgment order that denied him an
evidentiary hearing on the § 806.07, Stats.,
motion he filed to vacate the foreclosure judgment. He challenges the foreclosure judgment's merits and the trial
court's refusal to grant him an evidentiary hearing on his postjudgment
motion. We reject both arguments. First, Minniecheske did not appear at the
foreclosure judgment hearing and therefore has no right to attack it on
appeal. See Wirth v. Ehly,
93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980). Rather, those who would challenge a default judgment but did not
appear before judgment must file a trial court postjudgment motion to vacate
the judgment that furnishes sufficient excuse for their default. See Maier Const., Inc. v. Ryan,
81 Wis.2d 463, 473, 260 N.W.2d 700, 704 (1978). They have no right to challenge the judgment by appeal.
Second, Minniecheske has
no right to appeal the postjudgment proceedings. They are not final under § 808.03(1), Stats.
At the time of his appeal, the trial court had not disposed of the
entire matter in litigation in the postjudgment proceedings. Rather, the trial court had merely denied
Minniecheske's request for an evidentiary hearing, while deferring resolution
of the postjudgment motion's merits until the parties filed briefs. The trial court stated that it would
"decide the issue of service on briefs pursuant to scheduling
letter." Minniecheske may not
appeal the trial court's decision to deny him an evidentiary hearing unless and
until the trial court issues an order denying his postjudgment motion on the
merits. Such an order would dispose of
the entire matter in postjudgment litigation and thereby permit an appeal of
prior nonfinal rulings. Rule 809.10(4), Stats. The record
contains no indication that the trial court has issued such an order. As a result, we dismiss Minniecheske's
appeal from both the foreclosure judgment and the trial court's interlocutory
postjudgment ruling.
By the Court.—Appeal
dismissed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.