Yaeger v. Fenske
| Decision Date | 06 February 1962 |
| Citation | 15 Wis.2d 572,113 N.W.2d 411 |
| Parties | Paul G. YAEGER et al., Respondents, v. Floyd R. FENSKE, Appellant. |
| Court | Wisconsin Supreme Court |
This suit was commenced in the civil court of Milwaukee county. A demurrer was interposed to the amended complaint which was denied by an order of the civil judge. An appeal was taken from the order to the circuit court for Milwaukee county, which, on the 15th day of May, 1961, entered an order affirming the decision of the civil court. The defendant appeals.
Demet & Demet, Milwaukee, for appellant.
H. J. Sanville, Milwaukee, for respondent.
The defendant is precluded from appealing this order by sec. 274.33(3), Stats., which provides, in part, as follows:
'* * * no order of the circuit court shall be considered appealable which simply reverses, or affirms an order of the civil court of Milwaukee county, unless the order of the civil court grants, refuses, continues, modifies or dissolves a provisional remedy or injunction.'
In Meyers v. Sohrweide (1949), 254 Wis. 389, 36 N.W.2d 584, we held that an order affirming an order of the civil court overruling a demurrer to a complaint was not appealable under the provision of this statute. A contrary result was reached in Danielson v. Garage Equipment Mfg. Co. (1913), 151 Wis. 492, 139 N.W. 443. However, at that time sec. 3069, Stats. (now sec. 274.33, Stats.) did not contain such a provision. In 1915, two years after Danielson was decided, sec. 3069, Stats., was amended to include the above provision. See Ch. 219, Laws of 1915, sec. 3069(3), Stats. The order of the civil court did not involve a provisional remedy or an injunction.
It is the duty of this court, notwithstanding no issue has been raised by counsel, to take notice of a point which goes to the jurisdiction of this court on appeal and to dismiss the appeal on its own motion, if the order of the trial court is not an appealable order. Estate of Baumgarten (1961), 12 Wis.2d 212, 107 N.W.2d 169; Kimmel v. Kimmel (1960), 9 Wis.2d 484, 101 N.W.2d 666; Mitler v. Associated Contractors (1958), 3 Wis.2d 331, 88 N.W.2d 672. We are not concerned here with an irregularity which may be waived. Under the statute we lack the necessary jurisdiction to decide this appeal.
The appeal is dismissed.
GORDON, J., not participating.
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