Ledebuhr v. Grand Grove of Wisconsin of the Order of Druids

97 Wis. 341

• Court: Wisconsin Supreme Court
• Decided: October 28, 1897
• Status: Published

Opinion

NewMAN, J.

Unless this is a final order, within the meaning of the statute, it is not appealable. To be appealable, it must be “a final order, affecting a substantial right, made . . . upon a summary application in an action after judgment.” Laws of 1895, ch. 212, sec. 1, subd. 2. It could not be appealable under subd. 1, because it does not prevent a judgment from which an appeal might be taken. It plainly contemplates further proceedings in the action, and a possible judgment. The fact that it stays proceedings in the action, and postpones judgment, does not make it appealable. Peeper v. Peeper, 53 Wis. 507. And it is not one of the orders mentioned in subd. 3. Is it, then, a final order, within the meaning of subd. 2 ? It certainly is not final in any; such sense as that it concludes or ends the controversy. It concludes nothing. It leaves everything open for future proceedings and investigation. No doubt, its effect upon the rights of the parties is the test -whether it is a final order. An order which sets aside a judgment and opens a default is not, generally, final. It may be final if it cuts off rights which have been acquired under the judgment. Kingsbury v. Kingsbury, 20 Mich. 212, 215. If it closes the matter and precludes further hearing and investigation, it is final; and generally an order is not final which does not completely •dispose of the subject matter and the rights of the parties, and so determine the action as to prevent a judgment. 2 Ency. of PI. & Pr. 72. It is clear that this is not a final order, and so is not appealable. Davison v. Brown, 93 Wis. 85.

By the Court.— The appeal is dismissed.