State v. Eigel
| Decision Date | 10 January 1933 |
| Citation | 210 Wis. 275,246 N.W. 417 |
| Parties | STATE v. EIGEL ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Milwaukee County; John J. Gregory, Circuit Judge.
Action by the State of Wisconsin against Charles J. Eigel and another. The action was dismissed, and subsequently an order was made vacating the previous order dismissing the action, and reinstating the action and placing it upon the calendar, and defendants appeal.--[By Editorial Staff.]
Appeal dismissed.
This action was begun by service of summons and complaint on April 25, 1925, to recover the sum of $700 on account of a bond signed by the defendants for the appearance of Frank Brixius in a criminal proceeding then pending. The bond was dated April 23, 1923, and was delivered, filed, and approved in the office of the clerk of the municipal court on that day.
The defendants appeared and answered, admitting the execution of the bond, alleging as a defense that Prixius was wrongfully accused of the offense of which he was charged, and asking that the complaint be dismissed. The answer was served June 17, 1927. Plaintiff demurred to the answer.
The case was not brought to trial, and on March 6, 1931, the court dismissed the action under the provisions of section 269.25, Stats. On June 27, 1931, the demurrer was brought on for hearing on the motion of the district attorney. The district attorney made a motion in open court for reinstatement of the action. The motion was granted, and an entry thereof was made on the docket of the clerk of the circuit court. No formal order was made reinstating the action, but there was a written order sustaining the demurrer. No notice of entry of either order was served. Thereafter the defendants moved to amend the order sustaining the demurrer so as to include the order reinstating the case, apparently on the theory that an order entered on the minutes of the clerk was not appealable. The motion came on for hearing, and on December 28, 1931, the following order was made: “Now, therefore, it is ordered that the order of this court dated March 6, 1931, dismissing the above entitled action under the provisions of Stat. 269.25 be and the same is hereby vacated and set aside, and that said action be reinstated and placed upon the calendar of said court,” from which order the defendants appeal.John F. Thieman, of Milwaukee, for appellants.
John W. Reynolds, Atty. Gen., and George A. Bowman, Dist. Atty., O. L. O'Boyle, Corp. Counsel, and Clark J. A. Hazelwood, Asst. Corp. Counsel, all of Milwaukee, for the State.
[1]Section 269.46 provides that a court may relieve a party from an order against him through his mistake, inadvertence, surprise, or excusable neglect. The court was without power to vacate the order of March 6, 1931, except as provided in section 269.46, because the term during which it was made had expired. It is the contention of the plaintiff that the order of December 28, 1931, reinstating the action, is not an appealable order.
[2][3][4] The order of March 6, 1931, dismissing the action, was appealable because it determined the action. Section 274.33 Stats. The order of December 28, 1931, reinstating the action, was not appealable, however, because, although it affected a substantial right, it did not “determine the action” nor “prevent a judgment from which an appeal might be taken.” Raymond v. Keseberg, 98 Wis. 317, 73 N. W. 1010. While the motion made by the...
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