Kingston v. Kingston

| Wis. | Feb 21, 1905

Dodge, J.

Appealability of this order must find support, if at all, in subd. 2, see. 3069, Stats. 1898, as “a final order affecting a substantial right made in a special proceeding.” Ch. 300, Laws of 1899, clearly provides for a special proceeding, as distinguished from an action. Sec. 3 directs that, immediately upon tbe presentation of an application for sale of tbe real-estate interests of persons therein described, tbe circuit court must appoint some suitable person as referee to make such sale, who shall give bond. Upon tbe coming in of bis bond tbe court is to proceed to bear tbe evidence, by itself or on reference, and to determine whether such sale should be made, and to enter an order according to such determination, either directing sale or dismissing tbe proceedings. A final order in a special proceeding, within tbe meaning of this statute, is one which determines and disposes finally of tbe proceeding — one which, so longB as it stands, precludes any further steps therein. It beam the same relation to the proceeding in which it is entered as the final judgment bears to an action. 2 Ency. Pl. & Pr. 72; In re Schumaker, 90 Wis. 488" court="Wis." date_filed="1895-06-20" href="https://app.midpage.ai/document/in-re-schumaker-8184892?utm_source=webapp" opinion_id="8184892">90 Wis. 488, 63 N. W. 1050; Maynard v. Greenfield, 103 Wis, 670, 79 N. W. 407; State ex rel. Att’y Gen. v. German Exch. Bank, 114 Wis. 436" court="Wis." date_filed="1902-05-13" href="https://app.midpage.ai/document/state-v-german-exchange-bank-8187327?utm_source=webapp" opinion_id="8187327">114 Wis. 436, 439, 90 N. W. 570; Mitchell v. Kilburn, 74 N.C. 483" court="N.C." date_filed="1876-01-05" href="https://app.midpage.ai/document/mitchell-v--kilburn-3657363?utm_source=webapp" opinion_id="3657363">74 N. C. 483; McCredie v. Senior, 4 Paige Ch., 378" court="None" date_filed="1834-01-28" href="https://app.midpage.ai/document/mcredie-v-e--r-senior-5548074?utm_source=webapp" opinion_id="5548074">4 Paige, 378; Beebe v. Griffing, 6 N.Y. 465" court="NY" date_filed="1853-07-01" href="https://app.midpage.ai/document/price-v-mcgown-5476350?utm_source=webapp" opinion_id="5476350">6 N. Y. 465; In re Freeholders of Irondequoit, 68 N.Y. 376" court="NY" date_filed="1877-02-06" href="https://app.midpage.ai/document/matter-of-freeholders-of-irondequoit-3601462?utm_source=webapp" opinion_id="3601462">68 N. Y. 376, 380; In re Grab, 157 N.Y. 69" court="NY" date_filed="1898-10-18" href="https://app.midpage.ai/document/matter-of-grab-3628640?utm_source=webapp" opinion_id="3628640">157 N. Y. 69, 51 N. E. 398. It is perfectly clear that the order appointing the referee under sec. 3 of this act is not of such character. It is to be entered ex parte, before hearing, and leaves for investigation and for determination by some subsequent order all of the merits presented by the application. It is clearly intermediate, and not final. Hence we must conclude that it is not within the description of those orders which are rendered appealable by the above-cited section of the statutes.

Some suggestion is made that more recent legislation, first appearing in the Statutes of 1898 as an amendment to sec. 3047, provides that appeals may be taken from “interlocutory judgments.” This, however, applies by its terms to interlocutory judgments which can be entered only in “actions.” Sec. 2883. It has no application to interlocutory orders in special proceedings. They are not judgments, within the terminology of the Code or the statutes authorizing appeals.

By the Court. — Appeal dismissed.