Milwaukee Corrugating Co. v. Flagge

• Decision Date: 13 January 1920
• Citation: 175 N.W. 777,170 Wis. 492
• Parties: MILWAUKEE CORRUGATING CO. v. FLAGGE ET AL.
• Court: Wisconsin Supreme Court

170 Wis. 492

175 N.W. 777

MILWAUKEE CORRUGATING CO.

v.FLAGGE ET AL.

Supreme Court of Wisconsin.

Jan. 13, 1920.

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

Action by the Milwaukee Corrugating Company against P. F. Flagge and others. From an order denying motion to suppress an adverse examination of the named defendant, defendants appeal. Appeal dismissed.

Eschweiler, J., dissenting.

Appeal from an order denying a motion to suppress an adverse examination of defendant Flagge under section 4096, Stats. Wis. The plaintiff brought action against Flagge, the Northern Corrugating Company, and three other defendants by the service of a summons alone. It then filed an affidavit for the purpose of obtaining an adverse examination of the defendant Flagge in order to enable it to plead, and in the affidavit alleged that the general nature and object of the action “is one brought by the plaintiff against the defendants to recover damages for an alleged conspiracy of the defendants to injure the plaintiff by wrongful acts and damages for the alleged breach of a contract between the plaintiff and the defendant Flagge and for such other and further relief as may be just and agreeable to equity.” The motion to suppress was upon the ground that the plaintiff's affidavit was insufficient in that it did not state the facts showing the general nature and object of the action. Upon the hearing of the motion to suppress additional affidavits were filed on each side, and it appeared that the defendant Flagge was employed by the plaintiff as its superintendent under a written contract dated November 16, 1917, and quit such employ and went into the service of the defendant the Northern Corrugating Company about October 1, 1918, and that the two concerns were rivals in business. The plaintiff claimed on the hearing of the motion to suppress that the said contract bound the defendant Flagge to work for the plaintiff and devote his time and inventive ability to its service for three years, but the defendants claimed that the contract was terminable at will. The court denied the motion to suppress, and the defendants appeal.Minahan & Minahan, of Green Bay, for appellants.

Glicksman, Gold & Corrigan, of Milwaukee, for respondent.

WINSLOW, C. J. (after stating the facts as above).

A motion to dismiss is made on the ground that the order in question is not appealable, and this must be first examined. If appealable, it must be because it is either “a final order affecting a substantial right made in special proceedings” or an order granting or continuing a provisional remedy. Subdivisions 2 and 3, § 3069, Stats.

[1] Examination of the question convinces us that our decisions are in serious confusion upon it. Twice at least it has been said that an adverse examination under section 4096 is both a provisional remedy and a special proceeding. Phipps v. Wis. Cent. R. R. Co., 130 Wis. 279, 110 N. W. 207;Karel v. Conlan, 155 Wis. 221, 144 N. W. 266. We are now satisfied that this holding is illogical and erroneous and should be disavowed. The Code (Stats. Wis. § 2594) divides all remedies into (1) actions and (2) special proceedings. An action is distinguished from a special proceeding, and vice versa. The term “special proceedings” includes only remedies not furnished by actions. Adverse examination, under section 4096, is a mere proceeding within an action, an incidental part of an action. It cannot be a special proceeding, because the two terms, “action” and “special proceeding.” are used in the Code in contradistinction to each other. In re Central Irrigation District, 117 Cal. 382, 49 Pac. 354;State v. Heinze et al., 28 Mont. 227, 72 Pac. 613.

[2] Being a provisional remedy, and not a special proceeding, the next question arising is whether an order refusing to suppress or prohibit the examination “continues” a provisional remedy. Here also there is evident confusion in our decisions. In State ex rel. Carpenter v. Mathys, 115 Wis. 31, 91 N. W. 114, it is held without discussion that an order denying a motion to limit the subjects of examination under section 4096 is not appealable because it neither “grants, refuses, continues, or modifies” a provisional remedy; on the other hand, it was held in Phipps v. Wis. Central R. R. Co., 133 Wis. 153, 113 N. W. 456, that an order requiring a witness to submit to examination under section 4096 and an order refusing to restrain a party from taking depositions of witnesses under that section were both appealable because they “continue” a provisional remedy. This decision was followed sub silentio in State v. M. E. R. & L. Co., 136 Wis. 179, 116 N. W. 900, 18 L. R. A. (N. S.) 672, and Hathaway v. Bruggink, 168 Wis. 390, 170 N. W. 244, in both of which cases appeals from orders refusing to suppress or restrain the taking of depositions under section 4096 were entertained and decided upon the merits, no question being raised as to appealability of the orders. So also in Gratz v. Parker, 137 Wis. 104, 118 N. W. 637, an appeal from an order requiring a defendant to submit to an examination was entertained and decided on the merits without discussion of the question of appealability. Appeals from similar orders were entertained and decided upon the merits in A. F....