Sly v. Vill. of Kilbourn City

• Decision Date: 06 December 1910
• Citation: 144 Wis. 203,128 N.W. 872
• Parties: SLY v. VILLAGE OF KILBOURN CITY.
• Court: Wisconsin Supreme Court

144 Wis. 203

128 N.W. 872

SLY

v.VILLAGE OF KILBOURN CITY.

Supreme Court of Wisconsin.

Dec. 6, 1910.

Appeal from Circuit Court, Columbia County; Chester A. Fowler, Judge.

Action by Rosena Sly against the Village of Kilbourn City. Judgment for plaintiff, and defendant appeals. Dismissed.

Among other references upon the part of the appellant were the following: Cleveland v. Hopkins, 55 Wis. 387, 13 N. W. 225;Johnson v. Eldred, 13 Wis. 482;Jones v. Walker, 22 Wis. 220;Smith v. Supervisors, 44 Wis. 686;Union Nat. Bank v. Benjamin, 61 Wis. 512, 21 N. W. 523;Butler v. Mitchell, 17 Wis. 54;Behl v. Schuette, 95 Wis. 441, 70 N. W. 559;Morgan v. Bishop, 61 Wis. 407, 21 N. W. 263.

Among references cited upon the part of the respondent were the following: Tenney v. City of Madison, 99 Wis. 539, 75 N. W. 979;Glover v. Wells, etc., Co., 93 Wis. 13, 66 N. W. 799;Cent. Nat. Bank v. Brand, 100 Wis. 648, 76 N. W. 608.James F. Dougherty and Edward H. Ryan, for appellant.

Norman E. Van Dyke (Grotophorst, Evans & Thomas, of counsel), for respondent.

TIMLIN, J.

The 60 days within which a proposed bill of exceptions should be served (section 2876, St. 1898) having expired, the appellant applied to the circuit court for an order extending the time. The court on July 25, 1910, granted the motion, but upon condition that “the defendant stipulate that the cause be placed upon the August, 1910, term of the Supreme Court for the state of Wisconsin upon motion as by the Supreme Court rules provided, and that they will within 10 days from the service of this order perfect their said appeal.” There was also a provision to carry those conditions into effect and an imposition of ten dollars costs. This appeal is from that part of the order imposing conditions. Section 2831, St. 1898, gives the circuit court power “on motion and good cause shown in discretion and upon such terms as may be just (to) allow any such proceeding to be taken after the time limited by or in pursuance of the statute.” Respondent first contends that the order is not appealable. Subdivision 2 of section 3069, St. 1898, authorizes an appeal from a “final order affecting a substantial right made * * * upon a summary application in an action after judgment.” There is no question but that this was a final order made upon a summary application in an action after judgment. But it is contended that the order does not affect a substantial right and therefore is not appealable.

It has long been a rule of practice in this court that upon appeal from discretionary orders, if the discretion of the court below has been abused, the order will be reversed, but if it is found that the discretion has not been abused the appeal will be dismissed. McCarville v. Boyle, 89 Wis. 651, 62 N. W. 517;McElroy v. M. P. H. Co., 109 Wis. 116, 85 N. W. 119;Lessig v. Lessig, 136 Wis. 403, 117 N. W. 792. In the interest of uniformity this rule should be applied to an appeal of the kind in question here, and in that sense the order is appealable. Ray v. Hixon, 90 Wis. 39, 62 N. W. 922, 48 Am. St. Rep. 899;Evans v. Railway Co., 54 Wis. 522, 11 N. W. 594;McElroy v. M. P. H. Co., 109 Wis. 116, 85 N....