Mechanical Appliance Co. v. A. Kieckhefer Elevator Co.

Wisconsin Supreme Court

Mechanical Appliance Co. v. A. Kieckhefer Elevator Co.

159 N.W. 556, 163 Wis. 647, 1916 Wisc. LEXIS 315

CourtWisconsin Supreme Court

DecidedJune 13, 1916

StatusPublished

Cited by1 cases

This text of 159 N.W. 556 (Mechanical Appliance Co. v. A. Kieckhefer Elevator Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mechanical Appliance Co. v. A. Kieckhefer Elevator Co., 159 N.W. 556, 163 Wis. 647, 1916 Wisc. LEXIS 315 (Wis. 1916).

Pincite

Opinion

Pee Cueiam.

In this action, commenced in tbe Milwaukee county civil court, judgment was rendered in that court for tbe plaintiff, and tbe defendant appealed therefrom to tbe circuit court, where tbe judgment was reversed and a new trial ordered. Tbe plaintiff has appealed to this court from this order, and tbe respondent now moves to dismiss tbe appeal on tbe ground that tbe order is not appealable.

Tbe motion must be denied. It. was held in Pabst B. Co. v. Milwaukee L. Co. 156 Wis. 615, 146 N. W. 879, that an order of the circuit court reversing a judgment of tbe civil court and ordering a retrial of tbe case in tbe circuit court “grants a new trial” and hence is appealable under tbe express language of sub. (3), sec. 3069, Stats., enumerating [648]*648certain classes of appealable orders. That decision covers this case unless there has been a material change in the statute, and really that is the question to be determined on this motion. By ch. 219 of the Laws of 1915 a clause was added to the subdivision cited providing (with some exceptions not material here) that an order which simply reverses or affirms an order of the civil court should not be considered appeal-able. It seems clear that this proviso does not apply to this case. The word “order” is used in all parts of the section technically and intentionally as meaning a direction of the court not included in a judgment. The order which is appealed from here did not simply reverse or affirm an “order” of the civil court, but reversed a “judgment” of the civil court and ordered a new trial. The court cannot extend the proviso to cover cases which its plain language does not reach.

The final sentence of the opinion in the case of Witt v. Voigt, 162 Wis. 568, 156 N. W. 954, is construed as an intimation that the proviso in question applies to a case like the present. The point was not before the court, however, in that case, and we are satisfied that the proviso does not apply.

By the Court. — Motion denied, without costs.

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Pee Cueiam.

In this action, commenced in tbe Milwaukee county civil court, judgment was rendered in that court for tbe plaintiff, and tbe defendant appealed therefrom to tbe circuit court, where tbe judgment was reversed and a new trial ordered. Tbe plaintiff has appealed to this court from this order, and tbe respondent now moves to dismiss tbe appeal on tbe ground that tbe order is not appealable.

Tbe motion must be denied. It. was held in Pabst B. Co. v. Milwaukee L. Co. 156 Wis. 615, 146 N. W. 879, that an order of the circuit court reversing a judgment of tbe civil court and ordering a retrial of tbe case in tbe circuit court “grants a new trial” and hence is appealable under tbe express language of sub. (3), sec. 3069, Stats., enumerating [648]*648certain classes of appealable orders. That decision covers this case unless there has been a material change in the statute, and really that is the question to be determined on this motion. By ch. 219 of the Laws of 1915 a clause was added to the subdivision cited providing (with some exceptions not material here) that an order which simply reverses or affirms an order of the civil court should not be considered appeal-able. It seems clear that this proviso does not apply to this case. The word “order” is used in all parts of the section technically and intentionally as meaning a direction of the court not included in a judgment. The order which is appealed from here did not simply reverse or affirm an “order” of the civil court, but reversed a “judgment” of the civil court and ordered a new trial. The court cannot extend the proviso to cover cases which its plain language does not reach.

The final sentence of the opinion in the case of Witt v. Voigt, 162 Wis. 568, 156 N. W. 954, is construed as an intimation that the proviso in question applies to a case like the present. The point was not before the court, however, in that case, and we are satisfied that the proviso does not apply.

By the Court. — Motion denied, without costs.

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159 N.W. 556, 163 Wis. 647, 1916 Wisc. LEXIS 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mechanical-appliance-co-v-a-kieckhefer-elevator-co-wis-1916.

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