Motowski v. People's Dentists of Wisconsin

Wisconsin Supreme Court

Motowski v. People's Dentists of Wisconsin

198 N.W. 465, 183 Wis. 477, 1924 Wisc. LEXIS 200

CourtWisconsin Supreme Court

DecidedApril 8, 1924

StatusPublished

Cited by8 cases

This text of 198 N.W. 465 (Motowski v. People's Dentists of Wisconsin) 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

Motowski v. People's Dentists of Wisconsin, 198 N.W. 465, 183 Wis. 477, 1924 Wisc. LEXIS 200 (Wis. 1924).

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Opinion

Eschweiler, J.

We are constrained to hold that none of the provisions contained in the order of November 3d, as detailed above and from which the plaintiff attempted to [480]*480appeal, are such as can now be passed upon by us under the statute regulating appeals to this court.

The only provision of sec. 3069, Stats., that could possibly authorize such review is sub. (1) thereof, reading as follows: “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.” But no such order is here involved.

We cannot now review the order requiring the complaint to be made more definite and certain. Milwaukee v. Milwaukee E. R. & L. Co. 172 Wis. 436, 179 N. W. 511; State ex rel. Schumacher v. Markham, 162 Wis. 55, 155 N. W. 917.

That a trial court may strike out a pleading or dismiss an action as a penalty for noncompliance with its order is well established. Central S. Co. v. Milwaukee-Waukesha B. Co. 166 Wis. 249, 164 N. W. 994; Nickerson v. Glines, 220 Mass. 333, 107 N. E. 942; 18 Corp. Jur. 1181; 9 Ruling Case Law, 204. But an order so dismissing is not appealable. Puhr v. C. & N. W. R. Co. 168 Wis. 101, 103, 169 N. W. 305. Neither is one refusing to dismiss. Gill v. Hermann, 168 Wis. 589, 171 N. W. 76; Raymond v. Keseberg, 98 Wis. 317, 321, 73 N. W. 1010.

While plaintiff may elect to stand upon his original complaint so far. as the individual defendant is concerned, still the payment of the motion costs provided for in the order of August 3d would not prevent a review, upon appeal from a final judgment, of so much of that order as directed the making of the complaint more definite and certain. The provision for the payment of the $10 costs of August 3d in the order of November 2d and here sought to be reviewed cannot make the latter order an appealable one. Welsher v. Libby, McNeil & Libby, 106 Wis. 291, 82 N. W. 143.

The other provisions of the order of November 2d are clearly not appealable.-

[481]*481The respondent’s brief not having been served in due time, and timely application having been made by appellant’s counsel to our Rule 46, we shall, under its terms, deny costs to respondent.

By the Court. — Appeal dismissed. No costs to respondent.

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Eschweiler, J.

We are constrained to hold that none of the provisions contained in the order of November 3d, as detailed above and from which the plaintiff attempted to [480]*480appeal, are such as can now be passed upon by us under the statute regulating appeals to this court.

The only provision of sec. 3069, Stats., that could possibly authorize such review is sub. (1) thereof, reading as follows: “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.” But no such order is here involved.

We cannot now review the order requiring the complaint to be made more definite and certain. Milwaukee v. Milwaukee E. R. & L. Co. 172 Wis. 436, 179 N. W. 511; State ex rel. Schumacher v. Markham, 162 Wis. 55, 155 N. W. 917.

That a trial court may strike out a pleading or dismiss an action as a penalty for noncompliance with its order is well established. Central S. Co. v. Milwaukee-Waukesha B. Co. 166 Wis. 249, 164 N. W. 994; Nickerson v. Glines, 220 Mass. 333, 107 N. E. 942; 18 Corp. Jur. 1181; 9 Ruling Case Law, 204. But an order so dismissing is not appealable. Puhr v. C. & N. W. R. Co. 168 Wis. 101, 103, 169 N. W. 305. Neither is one refusing to dismiss. Gill v. Hermann, 168 Wis. 589, 171 N. W. 76; Raymond v. Keseberg, 98 Wis. 317, 321, 73 N. W. 1010.

While plaintiff may elect to stand upon his original complaint so far. as the individual defendant is concerned, still the payment of the motion costs provided for in the order of August 3d would not prevent a review, upon appeal from a final judgment, of so much of that order as directed the making of the complaint more definite and certain. The provision for the payment of the $10 costs of August 3d in the order of November 2d and here sought to be reviewed cannot make the latter order an appealable one. Welsher v. Libby, McNeil & Libby, 106 Wis. 291, 82 N. W. 143.

The other provisions of the order of November 2d are clearly not appealable.-

[481]*481The respondent’s brief not having been served in due time, and timely application having been made by appellant’s counsel to our Rule 46, we shall, under its terms, deny costs to respondent.

By the Court. — Appeal dismissed. No costs to respondent.

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198 N.W. 465, 183 Wis. 477, 1924 Wisc. LEXIS 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/motowski-v-peoples-dentists-of-wisconsin-wis-1924.

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