227 Wis. 353 | Wis. | 1938
The following opinion was filed February 15, 1938:
Upon this appeal the only contentions of the appellant, Hayes, are that the order denying his application
Playes’ petition was filed in February, 1937, in an action of foreclosure brought by the plaintiffs as trustees for the holders of bonds secured by a mortgage. Iiayes is a bondholder. Judgment of foreclosure was entered on February 28, 1935. On October 30, 1936, after a hearing pursuant to an order to show cause served on all bondholders by registered mail, the court entered an order fixing November 30, 1936, as the date of the foreclosure sale; directing the trustees to bid $150,000 and more, if they might deem it advisable, and credit the purchase price against the judgment; and also directing that if they became the purchasers they should execute a declaration stating that they hold the property in trust for the bondholders. The trustees bid in the property at $150,000 at the sale on November 30, 1936. On February 4, 1937, they executed a declaration of trust, and on their application an order was issued to show cause on February 18, 1937, why the sale and the declaration of trust should not be confirmed; the trust determined to be an active
“It is plain that such a petition should not be considered upon a motion to confirm a sale, especially when nothing is presented which impugns the propriety of the conduct of the sale and the fairness of the sale price. . . . It is not appropriate at this time to try out the issues presented by the petition for intervention, the right to intervene being contested by the plaintiffs. Such petition may be filed hereafter, if desired, and after answer thereto will be passed on by the court. . . . The petition of Melvin J. Hayes must be denied without prejudice to the right of said petitioner to hereafter file a petition for intervention seeking whatever relief he may deem himself properly entitled to.”
Meanwhile on March 2, 1937, Hayes served and filed another petition repeating the facts stated in his first petition, and alleging additional facts as grounds for a prayer to be
In view of the express statements in the court’s order of March 3, 1937, and its memorandum opinion that Hayes’ petition for intervention “is denied without prejudice, however, to any right that he has or may have to file [a] petition herein hereafter for intervention or for such other relief as he may be entitled to,” and the subsequent proceedings in relation to Hayes’ second petition for intervention, that order was obviously not such a “final order” as to be appeal-able under sec. 274.33 (2), Stats., authorizing an appeal from “a final order affecting a substantial right made in special proceedings. . . .” In stating what constitutes a “final order,” as that term is used in that statute, the court said in Ledebuhr v. Grand Grove of Wisconsin of the Order of Druids, 97 Wis. 341, 342, 72 N. W. 884,—
“No doubt, its effect upon the rights of the parties is the test whether it is a final order. . . . If it closes the matter and precludes further hearing and investigation, it is final; and generally an order is not final which does not completely dispose of the subject matter and the rights of the parties, and so determine the action as to prevent a judgment.”
Likewise in Kingston v. Kingston, 124 Wis. 263-265, 102 N. W. 577, the court, after stating that,—
“A final order in a special proceeding, within the meaning of this statute, is one which determines and disposes finally of the proceeding — one which, so- long as it stands, precludes any further steps therein,”—
“It . . . leaves for investigation and for determination by some subsequent order all of the merits presented by the application. It is clearly intermediate, and not final. Hence we must conclude that it is not within the description of those orders which are rendered appealable by the above-cited section of the statutes.”
Likewise in the case at bar, the order denying intervention is not final because it does not completely or finally dispose of the question as to Hayes’ right to intervene, or conclude or end the controversy in respect thereto', and thus preclude any further steps therein. On the contrary the court expressly left that question and all of the merits presented by Hayes’ application for intervention open for future proceedings and determination by a subsequent order in the action. It follows that the appeal must be dismissed.
By the Court. — Appeal dismissed.
A motion for a rehearing was denied, with $25 costs, on April 12, 1938.