Flannigan v. Lindgren
| Decision Date | 27 September 1904 |
| Citation | 122 Wis. 445,100 N.W. 818 |
| Parties | FLANNIGAN v. LINDGREN, COUNTY TREASURER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Oconto County; Sam'l D. Hastings, Judge.
Mandamus on relation of M. J. Flannigan against John Lindgren, as county treasurer of Oconto county. From an order denying an application for an order prescribing what particular questions arising in the proceeding shall be tried by jury, relator appeals. Dismissed.
Alternative writ of mandamus to compel action on the part of respondent, as county treasurer of Oconto county, was made by return, to which answer was filed. Thereupon relator applied for an order “prescribing what particular questions arising in said action shall be tried by a jury.” This application was denied by order dated March 9, 1904, on the ground stated both in the order and in the accompanying opinion, that upon the case made by the pleadings mandamus could not be sustained to enforce the act desired. From this order the relator appeals.Classon & Brazeau (P. A. Martineau, of counsel), for appellant.
Greene, Fairchild, North & Parker, for respondent.
DODGE, J. (after stating the facts).
It is entirely plain that the order submitted to us for review is not within the appealable class. It is not even claimed to fall within any except the first subdivision of section 3069, Rev. St. 1898: “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.” But while it may affect a substantial right, and while the views of the court expressed as a reason for the order may be conclusive of the action, this order does not determine the action, for it still pends; nor does the order prevent a judgment from which an appeal may be taken, for the logical result of the views expressed by the court would be a judgment dismissing the writ, from which, of course, this present appellant could take his appeal, and review all questions which could arise upon the present order. St. Pat. Cong. v. Home Ins. Co., 101 Wis. 155, 76 N. W. 1125; In re Ry. Co., 103 Wis. 191, 78 N. W. 753;Maynard v. Town of Greenfield, 103 Wis. 670, 79 N. W. 407;Mills v. Conley, 110 Wis. 525, 529, 86 N. W. 203;Benolkin v. Guthrie, 111 Wis. 554, 557, 87 N. W. 466.
Appeal dismissed.
To continue reading
Request your trial
-
State ex rel. Mueller v. Thompson
...be considered an order overruling a demurrer. Section 3069, St. 1898; State v. Supervisors of Wood County, 41 Wis. 28;Flannigan v. Lindgren, 122 Wis. 445, 100 N. W. 818. Attempting to act under chapter 476, Laws of 1911, the common council of the city of Milwaukee by a two-thirds vote of it......
-
Seattle & Northern Ry. Co. v. Bowman
...38 P. 1003; Padley v. Gregg, 26 Wash. 322, 67 P. 72. The motion must be granted, and the appeal is hereby dismissed.' In Flannigan v. Lingren, 122 Wis. 445, 100 N.W. 818, the Supreme Court of that state used this language: is entirely plain that the order submitted to us for review is not w......
-
Johnson, In re, 130
... ... Flannigan v. Lindgren, 1904, 122 Wis. 445, ... 100 N.W. 818; Jinks v. Braly, 1950, 202 Okl. 581, 216 P.2d 581 ... It has even been held that ... ...
- Ullman v. State