LaTimer v. Cent. Elec. Co.
| Decision Date | 22 November 1898 |
| Citation | 77 N.W. 155,101 Wis. 310 |
| Parties | LATIMER v. CENTRAL ELECTRIC CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.
Action by Harry D. Latimer against the Central Electric Company. From an order overruling a motion to set aside the service of summons, which was by publication, defendant appeals. Dismissed.McElroy & Fschweiler, for appellant.
Henry H. Morgan, for respondent.
The order appealed from did not prevent a judgment from which an appeal might be taken, hence is not appealable under section 3069, subd. 1, Rev. St. 1898, and manifestly it is not under any other subdivision of the appeal statute. Ledebuhr v. Grand Grove of Wisconsin Order of Druids. 97 Wis. 341, 72 N. W. 884;Hyde v. Bank, 96 Wis. 406, 71 N. W. 659;Milbauer v. Schotten, 95 Wis. 28, 69 N. W. 984. It should not be forgotten that the right of appeal is wholly statutory and that by chapter 212, Laws 1895, as subsequently amended and carried into the section cited, a material change was made as to appealable orders. Many decisions of this court made prior to such change do not apply to the present situation. Formerly an order was appealable if it involved the merits of an action or some part thereof, though it could be reviewed on appeal from the judgment. The provision to that effect no longer exists, and the decisions based thereon of course cannot be successfully cited to sustain an appeal. Under the statutes as they now exist an order, to be appealable, must be one affecting a substantial right made in an action in effect terminating it so as to prevent a judgment from which an appeal might be taken or made in a special proceeding or upon summary application after judgment, or it must grant, refuse, modify or dissolve an injunction, or set aside or dismiss a writ of attachment for irregularity, grant a new trial, or sustain or overrule a demurrer, or be an order vacating or refusing to set aside an order made at chambers, where the order, if made by the writ in the first instance, would be appealable.
The appeal is dismissed.
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