Fred Miller Brewing Co. v. Knebel

168 Wis. 587 | Wis. | 1919

Eschweiler, J.

For more than thirty days after service upon him of notice of the entry of the order of March 6, 1918, no attempt was made by the receiver to give any notice of intention to appeal therefrom. By the order to show cause of April 24th he sought to have reviewed and modified the identical matter disposed of by the court by its order of March 6th, and the substance and effect of such latter order was no more than a repetition of that which had been done on March 6th. The first order, therefore, being in force and unreversed, concluded and determined the subject matter of the second order. Hoefer v. Milwaukee, 155 Wis. 83, 143 N. W. 1038; Erin Prairie v. Wells, 158 Wis. 140, 147 N. W. 374, 148 N. W. 1095.

Since neither the consent of parties nor action of the court can extend the statutory time for the taking of an appeal (Filer & Stowell Co. v. C., M. & St. P. R. Co. 161 Wis. 591, 155 N. W. 118), such a result cannot be reached by the indirect method of again moving for the same relief that was refused in the prior order. The order of April 30th not being an appealable one and the time for appealing from the order of March 6th having expired, there is no appealable ordér before us. It is therefore unnecessary to consider the effect of the language relied upon by receiver’s counsel, found in sec. 3049, Stats., which provides, “An appeal may embrace two or more appealable orders if the time for appealing therefrom or from either of them has not expired,” and any possible conflict there may be between that statute and the effect to be given to sec. 3042, Stats., which limits the time within which appeals may be taken from Orders made by the circuit court to thirty days after written notice of the making of the same.

We are prompted to also say that an examination of the record before us satisfies us that a dismissal of this appeal works no injustice to the receiver.

By the Court. — Appeal dismissed.