Stevens v. Sholes

Wisconsin Supreme Court

Stevens v. Sholes

39 N.W. 348, 72 Wis. 214, 1888 Wisc. LEXIS 215

DecidedSeptember 18, 1888

StatusPublished

This text of 39 N.W. 348 (Stevens v. Sholes) 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

Stevens v. Sholes, 39 N.W. 348, 72 Wis. 214, 1888 Wisc. LEXIS 215 (Wis. 1888).

Pincite

Opinion

Lyon, J.

While the statute (R. S. sec. 3069, suhd. 4) gives an appeal from an order which strikes off a demurrer on account of the frivolousness thereof, it does not authorize an appeal from an order refusing to strike off the demurrer for that cause. Such an order does not involve the merits of the action any more than does an order refusing to strike out portions of a pleading, which is not appealable. The order refusing to strike off the demurrer is conclusive of nothing. The demurrer still remains, and the determination of the issue of law made by it is unaffected by such refusal. Instead of appealing from the order, the plaintiff should have brought the demurrer to argument, and then she might have appealed from the order of the court in that behalf, if adverse to her. The right of appeal is purely statutory, and we find no statute which authorizes an appeal in a case like this. The appeal must therefore be dismissed.

By the Court.— Appeal dismissed.

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Lyon, J.

While the statute (R. S. sec. 3069, suhd. 4) gives an appeal from an order which strikes off a demurrer on account of the frivolousness thereof, it does not authorize an appeal from an order refusing to strike off the demurrer for that cause. Such an order does not involve the merits of the action any more than does an order refusing to strike out portions of a pleading, which is not appealable. The order refusing to strike off the demurrer is conclusive of nothing. The demurrer still remains, and the determination of the issue of law made by it is unaffected by such refusal. Instead of appealing from the order, the plaintiff should have brought the demurrer to argument, and then she might have appealed from the order of the court in that behalf, if adverse to her. The right of appeal is purely statutory, and we find no statute which authorizes an appeal in a case like this. The appeal must therefore be dismissed.

By the Court.— Appeal dismissed.

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Bluebook (online)

39 N.W. 348, 72 Wis. 214, 1888 Wisc. LEXIS 215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevens-v-sholes-wis-1888.