Wolfrom v. Anderson

• Decision Date: 26 November 1946
• Citation: 24 N.W.2d 881,249 Wis. 433
• Parties: WOLFROM et al. v. ANDERSON et al.
• Court: Wisconsin Supreme Court

249 Wis. 433

24 N.W.2d 881

WOLFROM et al.

v.ANDERSON et al.

Supreme Court of Wisconsin.

Nov. 26, 1946.

Appeal from a judgment and orders of the Circuit Court for Rock County; Jesse Earle, Judge.

Affirmed.

Action in partition by Katie Wolfrom and others against S. S. Summers, lessee under a five year lease, and others. From an interlocutory judgment ordering a sale of the premises, including the leasehold estate and orders subsequent to the judgment, Summers appeals. The facts are stated in the opinion.

Joseph G. Page, of Janesville, for appellant.

McGowan, Geffs, Geffs & Block, of Janesville, for respondent.

FOWLER, Justice.

The case involves appeals from an interlocutory judgment designated as an order and three subsequent orders made in a partition suit. More specifically the appeals are: (1) From a designated ‘order’ dated March 6, 1946, ordering certain premises sold free and clear of a lease; (2) From an order made April 27, 1946, confirming sale made pursuant to said order and directing that the sheriff deliver possession of the premises to the purchaser; (3) from an order entered July 12, 1946, nunc pro tunc as of May 10, 1946, denying a motion to set aside the order of confirmation; (4) from an order entered June 15, 1946, disallowing a petition of Summers, a defendant in the action, praying that his rights be determined under the lease and in effect demanding that the premises be sold subject to his lease instead of free from it.

The respondents contend that the court is precluded from considering the case on the merits because the orders are not appealable. The first in sequence of dates is that of March 6. This is not an order, but an interlocutory judgment, and such a judgment, though not the final act of the court in the course of the suit, is appealable. Sec. 274.09, Stats. It is contended that the judgment is not appealable because the appellant elected to accept damages instead of continued possession under a lease, but this goes to the merits of the appeal rather than to appealability. Pessin v. Fox Head Waukesha Corp., 230 Wis. 277, 282 N.W. 582, is cited in support of this contention but it is not in point. The appeal in that case was held not tenable because the order involved was not a final order after judgment. The order of March 6 is not an order after judgment and is appealable for the reason above stated. The orders of July 12, denying a motion to set aside the confirmation of the sale, that of June 15, disallowing the claim of defendant Summers, and that of April 27, confirming the sale are orders after the interlocutory judgment. The three orders last above mentioned are orders finally disposing of Summers' claim and preventing another judgment from which an appeal might be taken and are appealable under subsec. (1) and (2) of sec. 274.33, Stats.

The premises involved consist of sixty acres which by the will of Louis A. Wolfrom were devised to his wife, Katie Wolfrom, during her life or until her remarriage, with provision that after her death or remarriage the tract, referred to in the will as ‘the homestead farm,’ should remain in the family and the income thereof should go after the wife's death or remarriage to the testator's daughters, Beulah Anderson and Ruby Dales to share the income alike; with further provision that on Beulah's death one-half of the tract should go to her children and on Ruby's death one-half should go to her children. The testator's widow and the two daughters mentioned in the will are all living. The widow has never remarried. Ruby and Beulah have living children, and all are made parties herein. The action is in partition and is brought by the widow, one of the two daughters and her children, as plaintiffs, against the other daughter and her children and S. S. Summers who claims an interest as...