Cook v. McComb

65 N.W. 181, 91 Wis. 445, 1895 Wisc. LEXIS 98

• Court: Wisconsin Supreme Court
• Decided: November 26, 1895
• Status: Published

Opinion

Maeshall, J.

The first question to be determined on this appeal is whether the order is appealable. This must be decided in favor of the respondents. The right of appeal is purely statutory, and is regulated by sec. 3069, E. S., as amended by ch. 212, Laws of 1895. If it comes under any part of such section, it is subd. 1, which reads as follows: “ An order affecting a substantial right made in an action, when such order in effect determines-the action and prevents a judgment from which an appeal might be taken.” Obviously, this order does not prevent a judgment from which an appeal might be taken. It may be said that if a person circumstanced as appellant is waits till the entry of judgment and appeals from the judgment, in case of affirmance it will result in absolutely depriving him of his land, for in the meantime the period will have expired limited for compliance with the condition precedent to judgment in his favor, prescribed by the statute. But that is a matter for the legislature to regulate, and not the court. The legislature has clearly failed to provide that the order in question is appealable, and, if the result of a judicial declaration to that effect is to Work hardship, the court is not responsible for it.

It follows from the foregoing that the appeal must be dismissed.

By the Court.— The appeal is “dismissed.