Robert J. Klingbeil v. Gustav Perschke

Annotate this Case

Download PDF

COURT OF APPEALS OF WISCONSIN PUBLISHED OPINION Case No.: 99-0488 Complete Title of Case: ROBERT J. KLINGBEIL, PLAINTIFF, V. GUSTAV PERSCHKE, DEFENDANT-RESPONDENT, HELEN M. WEISENSEL, DEFENDANT, LAURA COOPER BAKER PKA LAURA S. COOPER, DEFENDANT-APPELLANT. Opinion Filed: May 20, 1999 Submitted on Memoranda: May 7, 1999 JUDGES: Concurred: Dissented: Appellant ATTORNEYS: Respondent ATTORNEYS: Eich, Vergeront and Deininger, JJ. On behalf of the defendant-appellant, the cause was submitted on the memorandum of Frederick B. Hobe of Hobe Law Office of Fort Atkinson. On behalf of the defendant-respondent, the cause was submitted on the memorandum of Ronald P. Hammer of Averbeck & Hammer, S.C. of Fond du Lac. COURT OF APPEALS DECISION DATED AND FILED NOTICE May 20, 1999 This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. Marilyn L. Graves Clerk, Court of Appeals of Wisconsin 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. No. 99-0488 STATE OF WISCONSIN IN COURT OF APPEALS ROBERT J. KLINGBEIL, PLAINTIFF, V. GUSTAV PERSCHKE, DEFENDANT-RESPONDENT, HELEN M. WEISENSEL, DEFENDANT, LAURA COOPER BAKER PKA LAURA S. COOPER, DEFENDANT-APPELLANT. APPEAL from a judgment of the circuit court for Jefferson County: WILLIAM F. HUE, Judge. Appeal dismissed. Before Eich, Vergeront and Deininger, JJ. No(s). 99-0488 PER CURIAM. The issue in this opinion is whether Laura Cooper Baker s notice of appeal was timely filed. Specifically, the question is whether the last day to file the appeal was Presidents Day, or the next day following. We conclude that even though Presidents Day is defined as a holiday in certain statutes, the notice of appeal should have been filed on that day because the office of the circuit court clerk was open. Accordingly, we dismiss this appeal for lack of jurisdiction. The time to appeal in this case was shortened to forty-five days by the filing of a notice of entry of judgment. See § 808.04(1), STATS. The fortyfifth day was Saturday, February 13, 1999. There is no dispute that one more valid day remained on which to file a notice of appeal. The question is whether that day was the following Monday, which was Presidents Day, or the following Tuesday. Baker filed her notice of appeal on the Tuesday. The situation is controlled by § 801.15(1)(b), STATS., which provides: Notwithstanding ss. 985.09 and 990.001(4), in computing any period of time prescribed or allowed by chs. 801 to 847, by any other statute governing actions and special proceedings, or by order of court, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a day the clerk of courts office is closed. When the period of time prescribed or allowed is less than 11 days, Saturdays, Sundays and holidays shall be excluded in the computation. 2 No(s). 99-0488 This subsection applies to this appeal because the time in which to file the appeal is prescribed by § 808.04, STATS., which is a section in chs. 801 to 847. 1 Applied to these facts, the forty-fifth day is a Saturday. It is not disputed that the office of the circuit court clerk was closed on Saturday and Sunday, and therefore those days are not included. However, Baker concedes that on Monday the clerk s office was open, even though it was Presidents Day. Therefore, that was forty-fifth day upon which to file an appeal. There are two possible arguments as to why Presidents Day should not be included because it is a holiday. One of those arguments relies on § 990.001(4)(c) and (4)(e), STATS. If that section applies, Presidents Day would not be counted because there is no mail delivery. However, that section does not apply here because § 801.15(1)(b), STATS., states that it controls notwithstanding § 990.001(4). Another possible argument is that Presidents Day should not be counted because it is a holiday under § 801.15(1)(a), STATS., which provides a definition of holiday for purposes of applying § 801.15(1), STATS. This argument would have merit if § 801.15(1)(b) went on to say that the last day shall be included unless it is a holiday. However, pursuant to a relatively recent amendment by the supreme court,2 this sentence of the statute no longer uses the term holiday. Rather, it says that the last day shall be included unless it is a 1 See also RULE 809.82, STATS., which provides, in computing any period of time prescribed by these rules, the provision of s. 801.15(1) and (5) apply ; and RULE 809.10(1)(b), STATS., which provides that, in civil cases, [t]he notice of appeal must be filed within the time specified by law. 2 See WIS. S. CT. Order 94-05 (eff. July 1, 1994). 3 No(s). 99-0488 day the clerk of courts office is closed. Therefore, the definition of holiday has no application.3 Because a timely notice of appeal is necessary for this court to have jurisdiction, this appeal must be dismissed. See RULE 809.10(1)(b), STATS. By the Court. Appeal dismissed. 3 Although this issue is not before us, we note that a different result may occur if the prescribed period is less than eleven days. For those periods, § 801.15(1)(b), STATS., does use the defined term holiday. 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.