Manas v. Central Surety & Insurance

266 N.W. 780, 221 Wis. 381, 1936 Wisc. LEXIS 363

• Court: Wisconsin Supreme Court
• Decided: April 28, 1936
• Status: Published

Opinion

Maetin, J.

The issue on this appeal is whether or not the order from which the appeal is taken is, under the statute, an appealable order. Subs. (1) and (2), sec. 274.33, Stats., provide:

“Appealable orders. The following orders when made by the court may be carried by appeal to the supreme court:

“(1) An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken.

“(2) A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment.”

The appellant contends that the ruling upon the plea in abatement operated as a complete dismissal of the action as to it, and that the statute of limitations has run against the alleged cause of action for fraud. The order here appealed from does not come within either provision of the statute above quoted. We must, therefore, hold that it is not an appealable order and the appeal must be dismissed. This court could act in the premises only under its supervisory powers. That question is not here for consideration at this time.

By the Court. — Appeal dismissed.