American Food Products Co. v. Winter

147 Wis. 464 | Wis. | 1911

KeRWIN, J.

Tbe contentions of tbe appellant are (1) tbat there is no action properly pending against tbe appellant personally; (2) no service of tbe summons has ever been made upon any other defendant, therefore there was an attempt to examine tbe appellant in tbe absence of due commencement of an action; (3) even assuming service upon defendant American Milling Company, there can be no cause of action against tbat company arising out of tbe transaction referred to in tbe affidavit maintainable in Wisconsin; (4) tbat tbe plaintiff is not entitled to examination for tbe reason tbat it now has all tbe information required in order to plead, and that tbe subpoena, in so far as it calls for tbe production of' boobs and documents, should have been suppressed, and that to require appellant to remain within the state for examination under the facts of the case, or require him, a nonresident, to produce papers within the state which it would be necessary for him to go out of the state and bring back, would violate sec. 1, Amendm. XIV, Const, of U. S.

Many questions are discussed upon this appeal which in our view of the matter are wholly immaterial and unnecessary to be considered. It is conceded upon the record that the action against the appellant has been dismissed, and he only appears in the record as an officer of the defendant corporations for examination as such. Whether there was a valid service upon the defendant corporations or not we think unnecessary to consider upon this appeal. The appellant clearly is not a party after the action had been dismissed as to him, therefore had no right of appeal on that ground. But it is argued by appellant that the order is an order in a special proceeding, and the appellant having instituted such proceeding has a right to appeal from the order. If it can be said that the appellant is a party to a special proceeding, he is not an aggrieved party, and only an aggrieved party can appeal. Sec. 3048, Stats. (1898) ; State v. Wis. T. Co. 134 Wis. 335, 113 N. W. 944; Phipps v. Wis. Gent. R. Co. 133 Wis. 153, 113 N. W. 456; Voss v. Stoll, 141 Wis. 267, 124 N. W. 89; McGregor v. Pearson, 51 Wis. 122, 8 N. W. 101; Eureka S. H. Co. v. Sloteman, 67 Wis. 118, 126, 30 N. W. 241; Ackley v. Vilas, 79 Wis. 157, 160, 48 N. W. 257; Shabanaw v. C. C. Thompson & W. Co. 80 Wis. 621, 50 N. W. 781; Bragg v. Blewett, 99 Wis. 348, 355, 74 N. W. 807; Phipps v. Wis. Cent. R. Co. 130 Wis. 279, 110 N. W. 207.

The court below refused to quash the service on defendant corporations and the subpoena duces tecum, and of this the appellant cannot complain on this appeal. But it is said the appellant may be prejudiced by the fact that he is required to attend as a witness and may be compelled to go beyond tbe state to procure books and documents and return with them and testify. But no such order has yet been made. The appellant is neither a party to the action nor aggrieved by the order.

We think the order is not appealable.

By the Gourt. — Appeal dismissed.