Mitler v. Associated Contractors, Inc.

Decision Date28 February 1958
Citation3 Wis.2d 331,88 N.W.2d 672
PartiesBenjamin MITLER, Appellant, v. ASSOCIATED CONTRACTORS, Inc., a Wis. corporation, Respondent.
CourtWisconsin Supreme Court

Harvey & Harvey, Racine, Earle L. Christ, Racine, of counsel, for appellant.

Foley, Capwell & Foley, Racine, for respondent.

CURRIE, Justice

The appealability of the order in the instant case is controlled by the provisions of sec. 274.33, Stats.

An order denying an application for summary judgment is expressly made appealable by subd. (3) of such statute. However, an order for entry of judgment is not made appealable by such statute, and such an order is not appealable. Puhr v. Chicago & N. W. R. Co., 1918, 168 Wis. 101, 103, 169 N.W. 305; Weiler v. Herzfeld-Phillipson Co., 1926, 189 Wis. 554, 560, 208 N.W. 599; Witzko v. Koenig, 1937, 224 Wis. 674, 676, 272 N.W. 864; and Jaster v. Miller, 1955, 269 Wis. 223, 233, 69 N.W.2d 265. The reason why such an order for judgment is not appealable is because it does not prevent a judgment from which appeal can be taken.

In the instant appeal counsel for the respondent has raised no issue as to whether the order appealed from is appealable. However, parties cannot, either by failure to raise the question or by consent, confer jurisdiction upon an appellate court to review an order which is not appealable. Hempel v. Hempel, 1921, 174 Wis. 332, 341, 181 N.W. 749, 183 N.W. 258; Richter v. Standard Mfg. Co., 1937, 224 Wis. 121, 126, 271 N.W. 14, 271 N.W. 914; and Jaster v. Miller, supra, 269 Wis. at page 234, 69 N.W.2d at page 270. We quote from our opinion in Jaster v. Miller, supra, as follows (269 Wis. at page 234, 69 N.W.2d at page 270, 271):

'Neither the waiver or consent of a respondent, nor the willingness of this court to consider a matter in the interests of justice, gives us authority to take jurisdiction where none is conferred by law.'

We are thus confronted on this appeal with a situation in which that part of the order denying plaintiff's motion for summary judgment is technically appealable, while that part of such order, which directs that judgment be entered upon the pleadings for only the amount contained in defendant's offer of judgment, is not appealable.

However, it would be a useless gesture for us to pass upon the issue, of whether it was error for the trial court to have denied plaintiff's motion for summary judgment, so long as the judgment entered pursuant to the order is permitted to stand. The present appeal...

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20 cases
  • Baumgarten's Estate, In re
    • United States
    • Wisconsin Supreme Court
    • January 10, 1961
    ...order, it is the duty of this court to dismiss the appeal on our own motion if we conclude it is not. Mitler v. Associated Contractors, Inc., 1958, 3 Wis.2d 331, 88 N.W.2d 672. The enactment of SEC. 274.11 (4), STATS1., by the 1959 legislature, which has extended the jurisdiction that may b......
  • Walford v. Bartsch
    • United States
    • Wisconsin Supreme Court
    • October 29, 1974
    ...from the order for judgment, we held no jurisdiction was conferred upon the appellate court. In Mitler v. Associated Contractors, Inc. (1958), 3 Wis.2d 331, 332, 333, 88 N.W.2d 672, 673, in discussing the provisions of sec. 274.33, Stats., we 'However, an order for entry of judgment is not ......
  • McLaughlin v. Chicago, M., St. P. & P. Ry. Co.
    • United States
    • Wisconsin Supreme Court
    • June 10, 1966
    ...(1962), 17 Wis.2d 568, 578, 117 N.W.2d 660.2 Boodry v. Byrne (1964), 22 Wis.2d 585, 595, 126 N.W.2d 503.3 Mitler v. Associated Contractors (1958), 3 Wis.2d 331, 332, 88 N.W.2d 672.4 Raether v. Filer & Stowell Mfg. Co. (1913), 155 Wis. 130, 134, 143 N.W. 1035; Asen v. Jos. Schlitz Brewing Co......
  • Stahovic v. Rajchel
    • United States
    • Wisconsin Court of Appeals
    • December 10, 1984
    ...is taken from an order for judgment, which is not usually a final order appealable as of right, see Mitler v. Associated Contractors, 3 Wis.2d 331, 332-33, 88 N.W.2d 672, 673 (1958), we have determined that the instant order for judgment was a final order in that the trial court did not con......
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