| Wis. | Aug 15, 1875
The record in Webster v. Ins. Co., 36 Wis., 67" court="Wis." date_filed="1874-06-15" href="https://app.midpage.ai/document/webster-v-phœnix-insurance-6601577?utm_source=webapp" opinion_id="6601577">36 Wis., 67, has been remitted, and we cannot now say with. certainty whether the appeal is accurately stated in the report of that case. The report certainly indicates a double appeal. No question seems to have been made on the form of the appeal ; and the remark of the court upon it is obiter, and evidently unconsidered. For in Parker v. McAvoy, 36 Wis., 322" court="Wis." date_filed="1874-06-15" href="https://app.midpage.ai/document/parker-v-mcavoy-6601624?utm_source=webapp" opinion_id="6601624">36 Wis., 322, decided at the same term, when the question was raised, a similar appeal was held bad because double. It is unnecessary to repeat here the reasons on which the rule rests. The cases cited in Parker v. McAvoy show that it has long been the rule in this court. See also Noble v. Strachan, 32 Wis., 314" court="Wis." date_filed="1873-01-15" href="https://app.midpage.ai/document/noble-v-strachan-6601206?utm_source=webapp" opinion_id="6601206">32 Wis., 314, and Fehring v. Swineford, 33 id., 550. In the latter case the appeal was held double because the notice imported an appeal from a judgment and an order, though thei’e appeared to be no judgment in fact; thus resting the rule solely on the duplicity of the notice in form.
It was suggested, however, on the argument of this case, that, upon final judgment in a cause, the right of interlocutory appeal ceases; and that therefore so much of the notice of the-
Parker v. McAvoy establishes the rule that the right of appeal from interlocutory orders does not survive the right of appeal from the judgment. The rule went as far as it was necessary to go in that case; but the question was not then before the court, and is not passed upon, whether the right of interlocutory appeal survives the judgment itself.
The statute requires the court, upon appeal from judgment, to review interlocutory orders involving the merits and affecting the judgment (Tay. Stats., eh. 139, § 6); and not to reverse the judgment for errors in other orders. R. S., ch. 125, sec. 40.
From orders involving the merits and affecting the judgment, appeals after judgment are therefore unnecessary. Separate appeals from such orders, after judgment, would be litigious and oppressive. If they could properly be taken, and should be taken pending appeal from the judgment, they would be dismissed. Young v. Groner, 22 Wis., 205" court="Wis." date_filed="1867-09-15" href="https://app.midpage.ai/document/young-v-groner-6599847?utm_source=webapp" opinion_id="6599847">22 Wis., 205. The appropriate appeal is from the judgment, bringing here for review all such orders as well as the judgment itself.
And from orders not involving the merits or affecting the judgment, appeals after judgment are made unavailing for any legitimate purpose. Bonnell v. Gray, 36 Wis., 574" court="Wis." date_filed="1875-01-15" href="https://app.midpage.ai/document/bonnell-v-gray-6601672?utm_source=webapp" opinion_id="6601672">36 Wis., 574, and many cases there cited. The rule in Young v. Groner seems to have been overlooked in that case. It would be a vicious construction of the statute to uphold appeals after judgment from interlocutory orders “ which are matters of practice, which might have been questioned before judgment, but which are errors, if erroneous, for which the judgment could not be reversed.” Bonnell v. Gray.
It is true that the only express limitation put by the statute upon interlocutory appeals is, that they must be taken within thirty days after notice; but, following the course of reasoning in Parker v. McAvoy and in Jarvis v. Hamilton, 37 Wis., 87" court="Wis." date_filed="1875-01-15" href="https://app.midpage.ai/document/jarvis-v-hamilton-6601700?utm_source=webapp" opinion_id="6601700">37 Wis., 87, we cannot but hold that the statutory provisions cited (ch. 139, sec.
But appeals from interlocutory orders after judgment are not mere nullities. They stand upon the same footing as appeals from other orders and proceedings not appealable, are operative until dismissed, and are dismissed with judgment for costs. Cronckhite v. Ellefson, 9 Wis., 252" court="Wis." date_filed="1859-08-16" href="https://app.midpage.ai/document/cronckhite-v-ellefson-6597859?utm_source=webapp" opinion_id="6597859">9 Wis., 252; Lansing's Appeal, 10 id., 120; Rahn v. Gunnison, 12 id., 528; State v. Mushied, id.; 561; Vincent v. Wellington, 18 id., 159; Fairchild v. Dean, 13 id., 329; Waldo v. Rice, 18 id., 404 Roby v. Hudd, 22 id., 638; Ernst v. Steamer “Brooklyn,” 24 id., 616; Noonan v. Orton, 30 id., 609; S. C., 32 id., 104; State v. Fond du Lac, 35 id., 37; Crerar v. Railway Co., id., 67; Saveland v. Green, 36 id., 612; State v. Pierce, id., 646; Noble v. Strachan, Fehring v. Swineford, Parker v. McAvoy, Jarvis v. Hamilton, supra. Moore v. Cord, 13 Wis., 413" court="Wis." date_filed="1861-03-12" href="https://app.midpage.ai/document/moore-v-cord-6598370?utm_source=webapp" opinion_id="6598370">13 Wis., 413, holds the same rule, though falling into the manifest mistake of dismissing the appeal with partial costs only.
If the appellant here had taken a separate appeal from the order overruling the,demurrer, we should have held it ill taken for the reasons already stated, and have dismissed it with judgment for costs, according to the well established rule of the court. It would not, have been a nullity. And it cannot be held a nullity in the notice of this appeal. It is an appeal ill taken, but it is an appeal, and operates to make the appeal double. There are here an order and a judgment; and the appeal from them is more clearly double than the appeal in Fehring v. Swineford.
By the Court. — The appeal is dismissed, with costs.