Hyslop v. Hyslop

• Decision Date: 09 April 1940
• Parties: HYSLOP v. HYSLOP.
• Court: Wisconsin Supreme Court

234 Wis. 430

291 N.W. 337

HYSLOP

v.HYSLOP.

Supreme Court of Wisconsin.

April 9, 1940.

Appeal from orders of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Appeal dismissed.

Volney B. Hyslop, plaintiff, commenced an action on May 17, 1939, against Isabel Hyslop, his wife, for a divorce. The matter being at issue upon defendant's answer, defendant caused plaintiff to be subpoenaed for an adverse examination under sec. 326.12, Stats. In the course of that examination plaintiff declined under a claim of privilege to answer certain questions concerning his health, and refused to answer certain other questions upon the ground that his answers would tend to incriminate him. Thereupon defendant petitioned the circuit court on November 22, 1939, that plaintiff's complaint be dismissed upon the ground that “the plaintiff should be required to do equity before requesting relief of the court.” On December 12, 1939, the trial court entered an order denying this motion. On December 13, 1939, defendant filed a supplementary petition realleging the facts contained in the former petition, stating that the court commissioner before whom the adverse examination had been taken had filed his report and the same is a part of the record in the proceedings; that such report specifically shows that defendant had answered in the negative a question with respect to his sexual relations with another woman. The petitioner asks for an order dismissing plaintiff's complaint for want of equity, or, in the alternative, for an order requiring plaintiff to answer the questions specifically referred to in the original petition and motion. On December 13, 1939, this motion was denied. These are the orders appealed from by defendant.Bagley, Spohn, Ross & Stevens, of Madison, for appellant.

Bull, Biart & Bieberstein, of Madison, for respondent.

WICKHEM, Justice.

[1]We do not reach the merits of this controversy, nor is it necessary or expedient to state them for the reason that the orders involved are not appealable. In her brief defendant concedes that the order denying defendant's motion to dismiss is not a final order and not appealable. This being obvious, we shall not discuss the point further.

[2]Plaintiff also contends that the order denying defendant's motion to compel plaintiff to answer certain questions upon an adverse examination is not an appealable order, and we are satisfied that the contention is correct. So far as applicable here, sec. 274,33, Stats., provides:

“The following orders, when made by the court may be appealed to the supreme court: ***

“(2) A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment.

“(3) When an order grants, refuses, continues or modifies a provisional remedy ***.”

Cases involving the appealability of orders relating to the taking of adverse examinations were in some confusion up to the decision of this court in Milwaukee Corrugating Company v. Flagge, 170 Wis. 492, 175 N.W. 777. The state of the authorities up to that time is fully discussed in the opinion filed by the court in that case, and this exposition need not be repeated in detail. It will suffice to discuss the holdings in two cases decided prior to that decision.

In Blossom v. Ludington, 31 Wis. 283, the appeal was from an order of the circuit court requiring appellant to submit to an examination as a witness. This court denied a motion to dismiss the appeal upon the ground that the order requiring examination of a party as a witness at the instance of the adverse party is a provisional remedy, a substitute for the old bill of discovery, and that it gives affirmative relief. The conclusion was that such an order grants a provisional remedy and is appealable. In Phipps v. Wisconsin Central R. Co. 130 Wis. 279, 110 N.W. 207, 209, plaintiff gave notice of the taking of depositions of officers...