129 Wis. 42 | Wis. | 1906
It is contended on the part of the respond•ents that the order is not appealable, and, if this position is tenable, no other question presented need be considered. The decision of the court appointing commissioners having been made on the 9th day of June, 1905, and before ch. 419, Laws of 1905, went into effect, the latter law has no application,
“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 bears the same relation to the proceeding in which it is entered as the final judgment bears: to an action.”
The order in question does not determine the proceeding-so as to bring it within the class of appealable orders designated by the statute. Sec. 1379 — -11, Stats. 1898, respecting the establishment of drainage districts, provides for the filing-of petition asking for the organization of a drainage district,, and sets forth what the petition shall contain. Sec. 1379 — 12 provides for notice, and sec. 1379 — 13, as amended by ch. 43,. Laws of 1901, provides for a hearing upon the petition, and.
It is very clear from these provisions of the statute that the order appointing the commissioners is not a final order from which an appeal can be taken, and that the appeal given under sec. 1379 — 18 is the first appeal contemplated by the statute under these proceedings. The order appointing commissioners does not finally determine or dispose of the proceeding, and under the provisions of the statute above referred to the same may be determined and finally disposed of and the proceeding dismissed upon hearing on the report. So, it is clear from the statute, as well as the decisions of this court, that the order appointing commissioners is not a final order affect
It is unnecessary to go outside of this state in search of' authority upon the subject. What constitutes a final order from which an appeal may be taken is well settled by the decisions of this court. Counsel for appellants rely with apparent confidence upon the decisions of this court, which,, they claim, sustain their position that the order is appealable. In In re Theresa Drainage Dist. 90 Wis. 301, 63 N. W. 288, the question of appealability of the order was neither raised nor considered. In Bryant v. Robbins, 70 Wis. 258, 35 N. W. 545, and 74 Wis. 608, 43 N. W. 507, the appeal was from an order dismissing the petition, and, of course, where the petition was dismissed, the order dismissing it terminated the proceeding, and, so long as it stood, precluded any further-steps therein. So, the orders were appealable under the repeated decisions of this court.
We are also cited to decisions holding that orders appointing or refusing to appoint commissioners in condemnation proceedings are appealable, and it is claimed that the appointment of commissioners for the condemnation of lands for the use of railroads, under secs. 1846, 1852, Stats. 1898, are-similar to the proceedings here, but it will be seen from an examination of the statutes that such proceedings are quite-different. In these proceedings the court determines before the appointment of commissioners the jurisdictional facts-which authorize such appointment, and makes no further provision for subsequent consideration or review of these questions, the appeal provided for being from the award made by the commissioners, while in the case before us the statute expressly provides for a review of all matters upon the report of the commissioners, and for an appeal from the order confirming such report. The hearing upon the petition for the-appointment of commissioners to condemn lands for railroads-
Nor can we see that Stone v. Little Yellow Drainage Dist. 118 Wis. 388, 95 N. W. 405, supports appellants’ contention. There the commissioners were appointed, and on January 4, 1900, made and filed their report, and same was confirmed. Afterwards in May, 1901, the court made an order modifying the order of January 4, 1900, and later, on July 18, 1901, on petition previously made and without notice, the court made an order confirming a second assessment and directing that the same fall due in instalments at dates between ten and twenty years thereafter, and authorizing commissioners to
“A remedy deemed by the legislators complete for the correction of any such errors existed in an appeal from the final order.”
We deem further discussion of the question unnecessary. We hold that the order appealed from is not a final order from which an appeal can be taken. The fact that the court made findings of fact and conclusions of law does not improve appellants’ position respecting the right of appeal. Maynard v. Greenfield, 103 Wis. 670, 79 N. W. 407; Cook v. McComb, 91 Wis. 445, 65 N. W. 181.
It follows that the order appointing commissioners is not appealable, and therefore the appeal must be dismissed.
By the Court. — It is so ordered.