Sioux Land Co. v. Ewing

• Decision Date: 12 March 1912
• Citation: 135 N.W. 130,148 Wis. 600
• Parties: SIOUX LAND CO. v. EWING ET AL.
• Court: Wisconsin Supreme Court

148 Wis. 600

135 N.W. 130

SIOUX LAND CO.

v.EWING ET AL.

Supreme Court of Wisconsin.

March 12, 1912.

Appeal from Circuit Court, Douglas County; Frank A. Ross, Judge.

Application by the Sioux Land Company adverse to Mary C. Ewing and others for the appointment of a commissioner to take depositions to perpetuate testimony. From an order appointing a commissioner, defendants appeal. Appeal dismissed.

Pursuant to the provisions of sections 4117-4134, Stat., the Sioux Land Company made application to the circuit court for Douglas county for the appointment of a commissioner to take depositions to perpetuate the testimony of certain persons named in the petition, relative to the title of lands in which petitioner claimed an interest, so that the same might be used as evidence against all persons, under the provisions of sections 4130-4134, Stats. The court granted the application, appointed a commissioner to take depositions, and refused, in part, to stay proceedings pending an appeal. Appellants, who claimed title to the land in question, appeared in the court below, objected to the taking of depositions, and appealed from the order appointing a commissioner.Catlin, Butler & Lyons and S. R. Alden, for appellants.

Grace, Hudnall & Fridley, for respondent.

VINJE, J. (after stating the facts as above).

[1][2] Is the order appealable? If it is, it must be because it is “a final order affecting a substantial right made in a special proceeding,” under subdivision 2, § 3069, Stats. In the instant case no action is pending, so the proceeding cannot be regarded as a provisional remedy under subdivision 3 of section 3069, for a provisional remedy must always be in, or connected with, an action. Noonan v. Orton, 28 Wis. 386;Ellinger v. Equitable Life Assurance Society, 125 Wis. 643, 648, 104 N. W. 811;State v. Wisconsin Telephone Co., 134 Wis. 335, 113 N. W. 944;Snavely v. Abbot B. Co., 36 Kan. 106, 12 Pac. 522; 6 Words & Phrases, 5752; 32 Cyc. 742. Clearly, the application under the statute to perpetuate testimony, where no action is pending, is a special proceeding. Section 2596, Stats. That being so, is the order appealed from a final order in such proceeding, and does it affect a substantial right? In our judgment it is neither final nor does it affect a substantial right. It is not final, because section 4133, Stats., provides that before the deposition shall be ordered recorded the court must find that it was taken according to law and the directions contained in the commission. Such finding involves the exercise of a judicial act, an application of rules of law, and the requirements of the commission to the deposition when returned. If it be found not to be taken conformable thereto, it cannot be ordered recorded, and, if not recorded, it cannot be used, since section 4134 provides that only depositions taken and recorded under the statute may be used. So, until an order is made by the court directing the deposition to be recorded, judicial action has not terminated. The order allowing the deposition to be taken is merely an intermediate order; the order directing...