Lemon v. Aronson

164 N.W. 820, 166 Wis. 146, 1917 Wisc. LEXIS 178

• Court: Wisconsin Supreme Court
• Decided: October 23, 1917
• Status: Published

Opinion

Esciiweiijor, J.

Judgment was obtained in tbe civil court by plaintiff against defendant without contest. Thereafter proceedings were bad in tbe civil court by defendant to set aside tbe judgment, that be be allowed to defend, and for the appointment of a guardian ad litem on tbe ground that be was a minor-. An order was finally made by tbe civil court setting aside tbe judgment, appointing a guardian ad litem, and permitting tbe defendant to defend. From this order an appeal was taken to tbe circuit court. Upon the hearing in that court an order was made affirming tbe order of the civil court, returning tbe record to tbe civil court for-further proceedings, requiring tbe defendant to pay $10 within ten days from the date of tbe order, and also directing that “judgment be entered accordingly.” -

What purported to be a judgment of the circuit court was thereupon entered by the clerk containing the following provisions :

“It is hereby adjudged and decreed that the order appealed from is affirmed, with costs, and the record is to be returned to the civil court for further proceedings. It is further adjudged and decreed that the plaintiff pay to the defendant the sum of ten dollars, his costs of this motion, within ten days from date hereof.”

From such so-called judgment or order the plaintiff appealed.

The mere fact that the order appealed from may have been designated as a judgment, or apparently entered as such by the clerk, cannot make it anything more than an order. It is not the iinal determination of the rights of the parties in' the action, such as a judgment must be to meet the statutory definition. Sec. 2882, Stats.; Lewis v. C. & N. W. R. Co. 97 Wis. 368, 72 N. W. 976; Welsher v. Libby, McNeil & Libby, 106 Wis. 291, 82 N. W. 143.

The $10 provided for in such order was no more than the costs allowed by statute in the circuit court on appeal from the civil court. Concrete S. Co. v. Ill. S. Co. 163 Wis. 41, 157 N. W. 543.

Sub. (3), sec. 3069, Stats. 1915, prescribing what orders are appealable to this court, declares that no order of the circuit court shall be considered appealable which simply reverses or affirms an order of the civil court of Milwaukee county unless the order of the civil court affects a provisional remedy or injunction. Just such an order as is before us here was held to be within the letter of the statute and not appealable in Winternitz v. Schmidt, 161 Wis. 421, 154 N. W. 626.

By the Gourt. — Appeal dismissed, with costs.