Hyde v. German National Bank of Oshkosh, 96 Wis. 406

Hyde v. German National Bank of Oshkosh

96 Wis. 406 | Wis. | 1897

Pinney, J.

The order from which the defendant the German National Bank has appealed as from a final judgment is simply an order of reference for taking an account, and does not determine, or purport to determine, the rights of' the parties in any respect whatever. It is not within the-*410■class, of appealable orders. Laws of 1895, ch. 212. The result of the accounting was designed, it is presumed, to form fche basis of the final judgment in the action, yet to be rendered. There has been no final adjudication of any part ■of the merits of the action. “ In our practice there is no such thing as an interlocutory judgment, and there can be but one final judgment in the case, and that must dispose of all the issues and rights of the parties.” Trustees of St. Clara Female Academy v. Delaware Ins. Co. 93 Wis. 58, 69; Sellers v. Union Lumbering Co. 36 Wis. 398; Scott v. Reese, 38 Wis. 636; Singer v. Heller, 40 Wis. 544; Treat v. Hiles, 75 Wis. 265; Sherman v. Menominee River L. Co. 77 Wis, 23; Gage v. Allen, 84 Wis. 330. As was said by Cole, J., in Sellers v. Union Lumbering Co., sufra: “The distinction is broad between an order and a judgment, and they are not to be confounded in practice.” And as we held in Trustees of St. Clara Female Academy v. Delaware Ins. Co., supra: “ The merits of the case, in whole or in part, cannot be adjudicated or determined by a mere order. This is the appropriate office of a final judgment.” There have been only •certain findings of fact, but from these no appeal could be taken. ■ This action is one of a class in which the former ■equity practice of making an interlocutory decree in order to get the case in a fit condition for final hearing and judgment would be convenient and serviceable, but the practice that there can be no such judgment is too well settled to be questioned. And if a mere order could supply, in any degree, the place of such a judgment, it would not fall within the category of appealable orders. The court is therefore without jurisdiction of the subject matter submitted. Consent could not confer it.

By the Gourt.— The defendant’s appeal is dismissed.