Jacobs v. Beebe

70 N.W. 468, 95 Wis. 389, 1897 Wisc. LEXIS 204

• Court: Wisconsin Supreme Court
• Decided: February 23, 1897
• Status: Published

Opinion

Wikslow, J.

Upon motion made at chambers to strike out the defendant’s demurrer to the complaint as frivolous, an order was made striking out the demurrer, with costs, and requiring an answer to be served within five days. Motion was thereupon made before the court to set aside the order made at chambers, but it was denied, and the defendant appealed from the last-named order.

The appeal must be dismissed, because the order is not ap-pealable under ch. 212, Laws of 1895. An order striking out a demurrer as frivolous is not an order overruling a demurrer, within the meaning of that chapter, and hence is not appealable. Gianella v. Bigelow, 92 Wis. 267. Such an order not being appealable tfhen made by the court, it follows that an order refusing to vacate it is not appealable. Orders refusing to vacate chamber orders are only appeal-able when the original order would have been appealable if made by the court. Subd. é, sec. 1, ch. 212, supra.

By the Cov/rt. — Appeal dismissed.