Jarvis v. Hamilton

37 Wis. 87 | Wis. | 1875

By AN, C. J.

In Parker v. McAvoy, 36 Wis., 322, it was held that in the case of an interlocutory order, of which notice had not been given to put the thirty days limitation of the statute in motion, the right of appeal expired with the right to appeal from the judgment; upon the ground that the right of interlocutory appeal could not properly survive, and was not intended by the statute to survive, the final right of appeal from the judgment. That rule, however, cannot govern the present case, in which the order appealed from was made after judgment. Many orders may well be made, as this was, more than two years after judgment, from which the statute gives an appeal. If proper notice of such orders be given, they are undoubtedly subject to the thirty days limitation. But if such notice be not given, there is not in the statute any express limitation of the right of appeal given. And yet the statute should not be construed as giving, in any case, an unlimited right of appeal, if it can be avoided. Parker v. McAvoy, supra.

The orders after judgment which are appealable by the statute, are final orders affecting a substantial right. If, in a proceeding after judgment, several orders are made, ending in one finally disposing of the subject, no interlocutory appeal is given; it is from the final order, only that an appeal is given. Such final order, in such a proceeding, performs the office of a quasi judgment, from which an appeal will lie, in proper cases, as from a judgment. And, by analogy, the right of appeal, when not limited by notice to thirty days, must be held subject to the same limitation as appeals from judgments. It would be an unreasonable construction of the statute that the time for appealing from such final orders should, in any contingency, exceed that given for appeals from judgments. See Bank v Newton, 28 N. Y., 160; King v. Platt, 34 How. Pr., 26.

The present appeal was taken over five years after the entry of the final order appealed from, and must therefore be dismissed.

By the Court. —It is so ordered.