Bassett v. Jenkins

41 Wis. 197

Opinion

Goins, J.

The question as to the sufficiency of the complaint or the materiality of the amendment, is not before us. The appeal is from an order continuing the cause, which is not appealable. Waldo v. Rice, 18 Wis., 405; Roby v. Hudd, 22 id., 638; Johnston v. Reiley, 24 id., 494; Supervisors of Kewaunee Co. v. Decker, 28 id., 669; McLeod v. Bertschy, 30 id., 324; Reed v. Lueps, id., 561. It is true, in the order leave is given the plaintiffs to serve and file an amended complaint, which would obviate the defendant’s objection to the original complaint; but this does not change the character of the order. It is essentially an order continuing the cause, which, as said before, is not appealable. The amendment of the complaint had in fact been made on the application of the plaintiffs; and thereupon the defendant filed an affidavit of surprise, and asked for a continuance, which was granted. This was a matter addressed to the discretion of the circuit court, and there is no ground for saying there was any abuse of discretion in granting the continuance.

By the Court. — The appeal is dismissed.