Blesch v. Chicago & Northwestern Railway Co.

44 Wis. 593

• Court: Wisconsin Supreme Court
• Decided: August 15, 1878
• Status: Published

Opinion

OetoN, J.

In September, 1873, the respondent commenced a suit against the appellant in the circuit court of Brown county, in trespass, to recover damages to his lands in the city of Green Bay, occasioned by the building and operating of the railway of the appellant upon and near the same. In June, 1876, the respondent commenced a second action against the appellant, in trespass, for damages to the same lands, occasioned in the same way, accruing since the commencement of the first suit. Both of these actions are pending in said court. In October, 1876, commissioners, appointed under ch. 119, Laws of 1872, and its amendments, to appraise and assess the damages to said lands caused by the building of said railway, made their report, from which report the company appealed to said court; and that appeal is now pending.

This appeal is taken from an order of said court denying the motion of the appellant for a stay of the proceedings in said trespass actions until the trial of said appeal, or for a consolidation of said actions with said appeal and the report appealed from. The statute in respect to consolidating actions, sec. 42, ch. 125, R. S. 1858, provides for such consolidation only when the actions “might have been joined.” It is clear that these trespass actions could not have been joined with the proceedings to appraise the value and damages for the taking of these lands for railway purposes, under the statute referred to; and therefore they cannot be consolidated and tried together.

In any case, however, such an order in denial of a motion to consolidate actions, is discretionary.

The order refusing to stay the proceedings in the two actions of trespass until the appeal from the award of the commissioners is tried, is, in principle, like the case of Johnston, Ex'r, etc., v. Reiley, 24 Wis., 494, and in the discretion of the court, and not appealable.

By the Gourt. — The appeal is dismissed, with costs.

RyaN, O. J., took no part.