Sutton v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

91 N.W. 121, 114 Wis. 647, 1902 Wisc. LEXIS 178

Opinion

Dodge, J.

We need not discuss what acts by defendant might constitute waiver of its right to dismissal after expiration of the one year without trial, limited by see. 3072, Stats. 1898, nor whether the circuit court has authority to extend that period. See Christianson v. Pioneer F. Co. 101 Wis. 343, 77 N. W. 174, 917; State ex rel. Mitchell v. Johnson, 105 Wis. 90, 80 N. W. 1104. It suffices to dispose of the present appeal that, upon the facts as set forth by defendant’s affidavits, there could be predicated neither waiver on its part nor any error on the part of the circuit court in refusing to •enlarge the statutory period. That state of facts was, at most, placed in conflict by plaintiff’s affidavits, so that decision of the trial court thereon must control. In adopting such statement of facts, no error was committed. Neither the order directing judgment of dismissal, nor that .refusing to extend time for trial, is appealable, for neither prevents a judgment. Stats. 1898, sec. 3069, subd. 1.

By the Court.— The appeals from orders are dismissed. The judgment of the circuit court is affirmed.