Witt v. Wonser

219 N.W. 344, 195 Wis. 593, 1928 Wisc. LEXIS 183

Opinion

Doerfler, J.

The action is one to recover damages for personal injuries. It is for this purpose, and no other, that the action was brought. No judgment could be entered upon the court’s order, because it does not determine or fix any liability. The liability, if any, must .be determined or fixed by a court or a jury, and if it be found either by the court or the jury that the policy in question was a valid policy and in force at the time of the injury, then judgment follows in plaintiff’s favor in accordance with the order for judgment.

It requires no argument to conclude that, notwithstanding the finding or order herein entered, the corporation could not be held liable unless a case of negligence be first established in legal form. The action of the court, therefore, does not constitute a judgment. If we view it as an order for judgment, such order would not be appealable. Puhr v. C. & N. W. R. Co. 168 Wis. 101, 169 N. W. 305. If we deem the action as a mere finding, it is not appealable, for the reason that it has not yet ripened into a judgment. Tellett v. Albregtson, 160 Wis. 487, 152 N. W. 152.

Sec. 274.33 of the Statutes is entitled “Appealable orders.” Such section, in part, reads as follows:

“The following orders when made by the court may be carried by appeal to the supreme court:

“ (1) 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.”

The order of the court does affect a substantial right made in an action, but such order in effect does not determine the action, nor does it prevent a judgment from which an appeal might be taken.

The right to an appeal must be based upon the statute, and unless such right is granted by the legislature there is no appeal. Puffer v. Welch, 141 Wis. 304, 306, 124 N. W. 406. Under these circumstances the appeal must be dismissed.

By the Court. — It'is so ordered.