Kimmel v. Kimmel
| Decision Date | 08 March 1960 |
| Citation | 9 Wis.2d 484,101 N.W.2d 666 |
| Parties | Myrtle KIMMEL, Appellant, v. Leonard KIMMEL, Respondent, Pioneer Iron & Metal Corp., a Wis. corporation, et al., Interpleaded Defendants and Respondents. |
| Court | Wisconsin Supreme Court |
Eisenberg & Kletzke, Milwaukee, John W. Bernard, Milwaukee, of counsel, for appellant.
Goldenberg & McKay, Milwaukee, Samuel Goldenberg, Milwaukee, of counsel, for respondents.
This is a divorce action by the wife against the husband. Order No. 1 denied plaintiff's motion to interplead a corporation and a partnership in which plaintiff alleged that the parties have financial interests.
Orders from which appeals may be taken are designated by sec. 274.33, Stats. The part of the statute pertinent to Order No. 1 permits an appeal to the supreme court from:
'(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.'
Appellant submits that the order should be reversed as an abuse of the trial court's discretion. We do not reach the question of the discretion exercised by the trial court. An order denying an application by one who is already a party to an action to implead some third party is not appealable. We held this most recently in State v. McDonald Lumber Co., 1960, 9 Wis.2d 206, 100 N.W.2d 701, in which we reviewed the precedents establishing that conclusion.
When an order is determined to be unappealable the supreme court has jurisdiction only to dismiss the appeal. Wendt v. Dick, 1935, 219 Wis. 230, 262 N.W. 576.
Order No. 2 denied plaintiff's motion to require the defendant to deposit an adequate sum to the credit of the plaintiff to defray costs and attorney's fees in taking an appeal from Order No. 1. Appellant submits that the denial of her motion was an abuse of discretion.
The part of the statute pertinent to Order No. 2 permits an appeal to the supreme court from:
274.33 '(2) A final order affecting a substantial right made in special proceedings, without regard to whether the proceedings involve new or old rights, remedies or proceedings and whether or not the right to appeal is given by the statute which created the right, remedy or proceedings, * * *.'
Sec. 260.03, Stats., defines special proceedings thus:
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...some third party is not an appealable order. State v. McDonald Lumber Co., 1960, 9 Wis.2d 206, 100 N.W.2d 701; Kimmel v. Kimmel, 1960, 9 Wis.2d 484, 101 N.W.2d 666. Unappealable intermediate orders may be reviewed upon appeals from judgments, sec. 274.34, Stats., but as yet no judgment exis......
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...v. Milwaukee (1961), 15 Wis.2d 241, 112 N.W.2d 699; Estate of Baumgarten (1961), 12 Wis.2d 212, 107 N.W.2d 169; Kimmel v. Kimmel (1960), 9 Wis.2d 484, 101 N.W.2d 666; Mitler v. Associated Contractors (1958), 3 Wis.2d 331, 88 N.W.2d 672.2 State Department of Public Welfare v. LeMere (1962), ......
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...the order of the trial court is not an appealable order. Estate of Baumgarten (1961), 12 Wis.2d 212, 107 N.W.2d 169; Kimmel v. Kimmel (1960), 9 Wis.2d 484, 101 N.W.2d 666; Mitler v. Associated Contractors (1958), 3 Wis.2d 331, 88 N.W.2d 672. We are not concerned here with an irregularity wh......
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