First Wis. Nat. Bank of Milwaukee v. Carpenter

• Decision Date: 02 April 1935
• Citation: 218 Wis. 30,259 N.W. 836
• Parties: FIRST WISCONSIN NAT. BANK OF MILWAUKEE v. CARPENTER.
• Court: Wisconsin Supreme Court

218 Wis. 30

259 N.W. 836

FIRST WISCONSIN NAT. BANK OF MILWAUKEE

v.CARPENTER.

Supreme Court of Wisconsin.

April 2, 1935.

Appeal from two orders of the Circuit Court for Milwaukee County; Walter Schinz, Circuit Judge.

Dismissed as to one order; reversed as to the other.

Action by the First Wisconsin National Bank of Milwaukee to recover from Paul Vincent Carpenter the balance of the principal and interest owing on a promissory note executed and delivered by the defendant to the plaintiff. Defendant filed an answer purporting to state two separate defenses, and also a counterclaim. Plaintiff moved to strike out the answer as frivolous; and also filed a demurrer to the counterclaim. The court denied plaintiff's motion to strike out the answer, and also overruled the demurrer. Plaintiff appealed from both orders.Corrigan, Backus, Ruppa, Bortin & Backus, of Milwaukee (A. C. Backus, Jr., and Francis H. Parson, both of Milwaukee, of counsel), for appellant.

Fred R. Wright and Herbert S. Thatcher, both of Milwaukee, for respondent.

FRITZ, Justice.

[1][2][3] Defendant contends that the order denying plaintiff's motion to strike out the answer as frivolous is not appealable. Such a contention does not appear to have been made and ruled on by this court since the decisions in Gianella v. Bigelow, 92 Wis. 267, 65 N. W. 1030, and Jacobs v. Beebe, 95 Wis. 389, 70 N. W. 468, although, in several cases, in which the right to appeal directly from such an order was not challenged, the orders were reviewed. See Home Acres Co. v. Swenson-Dibble L. Co., 179 Wis. 556, 192 N. W. 42;Fleischman v. Reynolds (Wis.) 256 N. W. 778; and also Slama v. Dehmel (Wis.) 257 N. W. 163, 164, 167, in which we said that an order granting a motion to strike out an entire defense as sham may be reviewed by this court on the ground that it is in effect an order sustaining a demurrer. True in Wisconsin F. & F. B. Co. v. Southern S. Co., 188 Wis. 383, 387, 206 N. W. 204, the right of a defendant to have such an order reviewed was challenged, but as that review was sought on defendant's motion for review filed by it, under section 3070, Stats. (now section 274.34), in connection with the appeal from a judgment, the order was held reviewable because that statute authorizes such a review, on an appeal from a judgment, of “any intermediate order * * * which involves the merits and necessarily affects the judgment.” However, that decision does not hold that there can be an appeal from such an order, or a review thereof, independently of an appeal from a judgment.

It is also true that an order striking an entire defense on a motion which specifies as grounds therefor some ground listed in the statutes (sections 263.17, 263.22) as ground for demurrer has, for some purposes, been deemed in its legal effect as an order sustaining a demurrer. See the cases cited above and Milwaukee Steamship Co. v. City of Milwaukee, 83 Wis. 590, 595, 53 N. W. 839, 18 L. R. A. 353;Williams v. Journal Co., 211 Wis. 362, 247 N. W. 435. However, unless it expressly appears upon the face of such a motion that it is in fact based upon one of those statutory grounds for demurrer, so that it is virtually a demurrer, and the designation thereof as a motion, instead of as a demurrer, is merely a misnomer and can therefore be disregarded, there is no real basis for holding, on an appeal from an order entered thereon, that it is an order sustaining or overruling a demurrer, and that therefore an appeal therefrom is authorized under subdivision 3 of section 274.33, Stats.

It is well established that “the right to appeal in civil proceedings is purely statutory and does not exist at all except when, and then only to the extent, granted by statute,” Golden v. Green Bay Metropolitan Sewerage Dist., 210 Wis. 193, 246 N. W. 505, 508;David Adler & Sons Co. v. Maglio, 198 Wis. 24, 223 N. W. 89;Witt v. Wonser, 195 Wis. 593, 219 N. W. 344; Gianella v. Bigelow, supra; and that “the court has no jurisdiction to entertain an appeal from a nonappealable order.” Gilbert v. Hoard, 201 Wis. 572, 230 N. W. 720;Wiesmann v. Shanley, 124 Wis. 431, 102 N. W. 932. For some time prior to the enactment of chapter 212, Laws 1895, which amended subdivision 4 of section 3069, S. & B. Ann. Stats. (now section 274.33), that subdivision expressly authorized an appeal from an order for “judgment on application therefor, on account of the frivolousness of a demurrer, answer or reply, or strikes off such demurrer, answer or reply, on account of the frivolousness thereof.” However, by chapter 212, Laws 1895, that provision in subdivision 4 of section 3069, S. & B. Ann. Stats., was repealed. Shortly thereafter, in Gianella v. Bigelow, supra, on a challenge of the right to appeal from an order granting a motion to strike out a demurrer as frivolous, the appellant contended that “inasmuch as the motion to strike out under the practice established in this state brings the demurrer up for a hearing on the merits to all intents and purposes the same as if the issue was brought up for a hearing on regular notice of argument, the order should be held to be appealable, under subdivision 3 of the revised section, which gives the right of appeal from an order overruling or sustaining a demurrer.” This court, however, dismissed the appeal because the order was not an appealable order, since the amendment of subdivision 4 of section 3069, S. & B. Ann. Stats., by chapter 212, Laws 1895. In that connection the court said: “* * * It is obvious that the section was amended for the very purpose of restricting appeals. The right formerly existed from an order striking out a demurrer on motion as frivolous, independent of the right from the order sustaining or overruling the demurrer. Therefore, though the effect of the two orders is substantially the same, if the issue is brought to a hearing on regular notice for the first day of the term, general or special, an appeal may be taken from the order sustaining or overruling the demurrer. If a party sees fit to resort to the more summary method, by motion to strike out as frivolous, the order entered thereon will not be appealable.”

Thus, although the court recognized that the legal effect of the order striking out the demurrer as frivolous on a motion was substantially the same as the effect of an order overruling the demurrer would have been, that similarity in effect was not considered sufficient to render an order entered on such a motion appealable.

That decision was followed in Jacobs v. Beebe, 95 Wis. 389, 70 N. W. 468, by dismissing an appeal from a similar order. Those decisions have never been expressly overruled, and there has been no restoration by sta...