204 Wis. 301 | Wis. | 1931
The orders are not appealable. Sec. 274.33, Stats., describes the orders which may be brought to the supreme court by appeal, and neither of the orders under consideration is within that, statute. They are not final orders.
Orders similar to the first one mentioned in the statement of facts have in several instances been treated on ap
The difference between the Moran Case and this case lies in the difference between an appealable order and an order that is not appealable. There the issues were joined and a trial had. In this case the pleadings were such that no issues were joined, and any suggestion of an issue was, upon the stipulation entered into, abandoned and a default occurred. A default occurs when there is no trial of the issues. “Issues arise upon the pleadings when a fact or conclusion of law is maintained by one party and controverted by the other” (sec. 270.01), and “A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact” (sec. 270.06). Silverman v. Mark, 148 N. Y. Supp. 259; Taylor v. Taylor, 61 Oreg. 257, 121 Pac. 431; Ledebuhr v. Grand Grove, 97 Wis. 341, 72 N. W. 884; Kearney v. Morse, 199 Wis. 150, 225 N. W. 729; Hanson v. Custer, 203 Wis. 55, 233 N. W. 642.
In Port Huron E. & T. Co. v. Rude, 101 Wis. 324, 77 N. W. 177, there was an appeal from an order opening a default and it was there stated:
“Upon the authority of the case of Ledebuhr v. Grand Grove, 97 Wis. 341, 72 N. W. 884, the order in question must be held not appealable. It is not appealable under sub. 1, sec. 3069, Stats. 1898, because it does not determine the action, nor prevent a judgment from which an appeal may be taken. Neither is it appealable under sub. 2 of the same section, because it is not a final order after judgment,*305 As said in the case cited, ‘It concludes nothing; it leaves evérything open for future proceedings and investigation.’ Had the motion been denied, then the order would clearly have been a final order, as held in the case of Purcell v. Kleaver, 98 Wis. 102, 73 N. W. 322, and hence appealable.”
See Harvey v. Harvey, 201 Wis. 378, 230 N. W. 79, for discussion of the subject of appealable orders.
In addition to the general statutes regulating this subject, there are statutes peculiarly relating to divorce actions. Sec. 247.15 requires the appearance of the divorce counsel in default actions. Sec. 247.14 provides for the appearance of such counsel in an action when the defendant fails to answer or withdraws his answer before trial. This is what happened here. Sec. 247.18 reads:
“Default actions; affirmative proof required. No decree for annulment of marriage, or for divorce, shall be granted in any action in which the defendant does not appear and defend the same in good faith unless the cause is shown by affirmative proof aside from any admission to the plaintiff' on the part of the defendant.”
The rule sought to be established by the legislature draws the line between appealable orders and non-appealable orders, as far as a new trial is concerned, between defaults and actual trials. This of course gives to the trial court broad powers, but trial courts are not, and of right shotlld not bej overindulgent in the matter of excusing defaults and vacating judgments entered properly. Good cause must be shown; and the order entered setting aside a default is reviewable when the case reaches this court on appeal from the final judgment. There must be this power resting somewhere to relieve a party from mistakes and disadvantages when they result through excusable neglect or by something not chargeable to the party in default and when the application therefor is made seasonably. There ought to be no arbitrary action, and the order should be granted only when some
Whatever confusion over the question of the appealability of such an order as this may have existed, the recent decisions in conformity with the statutes have settled the rule. Unless the order falls within one or the other of the classes mentioned it is not appealable.
By the Court. — Appeal dismissed.