Phipps v. Wisconsin Central Railway Co.

110 N.W. 207, 130 Wis. 279, 1907 Wisc. LEXIS 263

• Court: Wisconsin Supreme Court
• Decided: January 8, 1907
• Status: Published

Opinion

Winslow, J.

This is an action to recover damages on account of the death of Chas. Phipps, deceased, plaintiff’s husband, who was a locomotive engineer in defendant’s employ, and is alleged to have been killed by reason of the negligent and insecure construction of the railroad bridge on defendant’s road through which his engine was precipitated. The defendant’s answer denied all negligence. After issue was joined the plaintiff gave notice of taking the depositions of Charles M. Morris, the secretary, and of Thomas H. Gill, the general attorney, of the defendant company, as adverse witnesses, under the provisions of sec. 4096, Stats. 1898, and its amendments. The attendance of the witnesses before the commissioner was compelled by a subpoena, which also required the production on the hearing of the plans of the bridge in question, as well as all telegrams or orders sent by the company to the conductor of the train which met the accident, as well as all other writings, telegrams, or statements in possession of the company relating to the inspection of the bridge, the cause of the disaster, or the matters set forth in the complaint. The witnesses declined to produce the plans and statements so desired, notwithstanding they were directed so to do by the commissioner, and the proceedings were thereupon certified to the circuit court, and upon motion that court made an order commanding the witnesses to produce the plans of the bridge, the telegrams or orders sent to the conductor or train crew, and the names of defendant’s employees who possessed any knowledge of the accident. Prom this order the defendant appealed, and the plaintiff now moves to dismiss the appeal.

Appealable orders are classified and defined by sec. 3069, Stats. 1898. Eeference to that section demonstrates at once that if the order before us is^ appealable it must be because it is (1) a final order affecting a substantial right made in special proceedings, or (2) an order granting, refusing, continuing, or modifying a provisional remedy. It is settled that the examination of a party under the provisions of sec. 4096, supra, is both a special proceeding and a provisional remedy. An order made in tire course of such an examination, requiring the witness to produce books and papers, is, however, merely an interlocutory order regulating the manner of procedure upon the examination, and in no sense a final order; nor does it in any proper sense grant, refuse, continue, or modify the provisional remedy. These propositions have been fully settled by the court in previous decisions, and cannot be considered as open to doubt. Stuart v. Allen, 45 Wis. 158; Knowles v. Rogers, 99 Wis. 231, 74 N. W. 813; State ex rel. Carpenter v. Mathys, 115 Wis. 31, 91 N. W. 114; Ellinger v. Equitable L. Assur. Soc. 125 Wis. 643, 104 N. W. 811. Tfiat sncfi an order is not a final order is also field by tfie supreme conrt of tfie United States in Alexander v. U. S. 201 U. S. 117, 26 Sup. Ct. 356.

By the Oourt. — Appeal dismissed.