Ledebuhr v. Druids

• Decision Date: 22 October 1897
• Citation: 97 Wis. 341,72 N.W. 884
• Parties: LEDEBUHR v. GRAND GROVE OF WISCONSIN OF THE ORDER OF DRUIDS.
• Court: Wisconsin Supreme Court

97 Wis. 341

72 N.W. 884

LEDEBUHR

v.GRAND GROVE OF WISCONSIN OF THE ORDER OF DRUIDS.

Supreme Court of Wisconsin.

Oct. 22, 1897.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Charles Ledebuhr against the Grand Grove of Wisconsin of the Order of Druids. From an order setting aside a judgment against defendant by default, plaintiff appeals. Dismissed.

The action is on a benefit certificate issued by the defendant to one Albert C. Krueger, in his lifetime. By the certificate, the defendant agreed to pay, to the person whom the said Albert C. Krueger should appoint in his last will and testament, the sum of $1,000 in the event of his death. Krueger died, and his will was admitted to probate. It contained a provision whereby, after the payment of his just debts and funeral expenses, he gave to the plaintiff all his personal property; “also, one thousand dollars insurance money by the” defendant. After the will had been admitted to probate, and an administrator with the will annexed appointed, the plaintiff brought this action to recover the amount of the certificate, and obtained judgment by default. On defendant's motion, the judgment and default were set aside, and the defendant admitted to defend. By the order, all proceedings in the action were stayed until the county court shall have administered the estate, and made its order of distribution. From that order the plaintiff appeals.Adolph Huebschmann, for appellant.

Julius E. Roeler, for respondent.

NEWMAN, J. (after stating the facts).

Unless this is a final order, within the meaning of the statute, it is not appealable. To be appealable, it must be “a final order, affecting a substantial right, made * * * upon a summary application in an action after judgment.” Laws 1895, c. 212, § 1, subsec. 2. It could not be appealable under subsection 1, because it does not prevent a judgment from which an appeal might be taken. It plainly contemplates further proceedings in the action, and a possible judgment. The fact that it stays proceedings in the action, and postpones judgment, does not make it appealable. Peeper v. Peeper, 53 Wis. 507, 10 N. W. 604. And it is not one of the orders mentioned in subsection 3. Is it, then, a “final order,” within the meaning of subsection 2? It certainly is not final in any such sense as that it concludes or ends the controversy. It concludes nothing. It leaves everything open for future proceedings and investigation. No doubt,...