In re The Will of Kneeland

40 Wis. 344 | Wis. | 1876

Cole, J.

The objection is taken vn'bimvne, that the order in this case is not appealable. The language of the order is, that the cause “ be stricken from the calendar of the present term of this conrt for want of a notice of trial thereof signed by said Bottum as attorney for said appellant.” This order, it is objected, merely operated to continue the cause for the term, and, under the decision of Roby v. Hudd, 22 Wis., 638; Johnston, Ex'r, v. Reiley, 24 id., 494; McLeod v. Bertschy, 30 id., 324; Noble v. Strachan, 32 id., 314; Parmalee v. Wheeler, id., 429, is not appealable. This position, we think, is correct, and must he sustained. It is argued, howevei’, that the order is cleai’ly appealable within the doctrine of Oatman v. Bond, 15 Wis., 21, McLeod v. Bertschy, and Noble v. Strachan. It seems to us there is a plain distinction between the. orders in the different cases. In Oatman v. Bond, the order was held to be one involving the merits, because it attempted to deprive a party in an equity cause of the right to have his witnesses examined in open court. In McLeod v. Bertschy, the order refusing to strike the cause from the calendar was held, upon the facts of the case, to involve really the question whether there was any action in court or not, and so necessarily to involve the merits. In Noble v. Strachan, Mr. Justice Eton, following the decision in Pw'malee v. Wheeler, was of the opinion that the order staying proceedings in the action was one resting in the sound discretion of the court, and was not appealable; and that the other order, denying the application of the plaintiffs for leave to discontinue the suit as to the defendant Strachan, was a nullity, and therefore could not prejudice the plaintiffs. The appeal in that case was double, and was dismissed for that reason. But we fail to perceive anything in the doctrine of these cases which sustains the appealability of the order in question, which merely strikes the cause from the calendar for the term because irregularly noticed for trial. We fully agree with the counsel of the respondent, that the order does not deprive the appellant of the right to have her appeal whether the will should be admitted to probate or not, tried; nor does it settle the controversy between her and her attorney of record as to who shall control the litigation, to which allusion was made on the argument. None of these questions are attempted to be determined by the order. But, says the learned counsel for the appellant, suppose the case is again noticed for trial as before, and the court, for the same reasons as led to the making of this order, strikes the cause from the calendar, and so continues to do indefinitely: how will the appeal ever be heard, unless such orders are held appealable? It is quite safe to assume that the supposed case will never occur; but if it should, the appellant would probably not be without a remedy. It is quite likely that a mandamus would lie to compel the circuit court to proceed and determine the appeal, if it should arbitrarily or unreasonably refuse to perform that duty. The question is not here for a decision, and it would be premature to anticipate it. But the cases where a mandamus will lie to a circuit judge, are collected in the note on page 632, 5 Wis., and might readily be increased by decisions in other states. We however take leave of the point upon the suggestion made.

By the Qowrt. — The appeal in this case is dismissed.