The opinion
Steinle, J.
(In re motion for rehearing). On the appeal, laches was not argued by the parties, nor was determination relative thereto made by this court. On the motion for rehearing the defendant James Gordon Brown specifically directed attention to items in the answer, the evidence and the statement of the trial court which, in my opinion, justify the granting of a new trial in the interest of justice. The answer set forth facts which reflected inequitable conduct and delay on the part of the plaintiff, Rose Ann Braun. Evidence adduced thereunder, if found to be credible, would indicate that the plaintiff may well have been guilty of laches. The court determined that the plaintiffs second husband assumed the role of loco parentis and became liable for the support of the minor. Nunc pro tunc findings of fact were submitted upon which laches may well have been predicated. It now appears that during the course of the hearing at which such findings of fact were being considered, the trial court indicated that the plaintiff was guilty of laches. However the proffered findings of fact were not signed by the court, and the decision was based only on the facts relating to the loco parentis issue. Had the court made findings of fact establishing laches, there would have been no liability on the part of the defendant such as found in Halmu v. Halmu *486b (1945), 247 Wis. 124, 136 , 19 N. W. (2d) 317 . In that case when determining that laches did not exist this court said:
“There are, however, two questions that need to be considered in connection with the amount due. The first is whether plaintiff, in spite of her belligerency, was guilty of laches because in the case of every contempt order she accepted the determination of the court as to the relief awarded her. We think there is nothing to this proposition. Plaintiff tried as hard as she could and used all means available to her to collect sums due for support money.’1 (Emphasis supplied. )
By reason of the fact that justice probably may have miscarried, I am of the opinion that this court ought to direct that in the interest of justice the case be remanded for determination as to whether the plaintiff had been guilty of laches.
I am authorized to state that Mr. Justice Currie and Mr. Justice Fairchild share the view expressed here.