170 Wis. 492 | Wis. | 1920
Lead Opinion
A motion to dismiss is made on the ground that the order in question is not appealable, and this must be first examined.
If appealable, it must be because it is either “a final order
Examination of the question convinces us that our decisions are in serious confusion upon it. Twice at least it has been said that an adverse examination under sec. 4096 is both a provisional remedy and a special proceeding. Phipps v. Wis. Cent. R. Co. 130 Wis. 279, 110 N. W. 207; Karel v. Conlan, 155 Wis. 221, 144 N. W. 266. We are now satisfied that this holding is illogical and erroneous and should be disavowed. The Code-(sec. 2594, Stats.) divides all remedies into (1) actions and (2) special proceedings. An action is distinguished from a special proceeding and vice versa. The term “special proceedings” includes only remedies not furnished by actions. Adverse examination under sec. 4096 is a mere proceeding within an action, an incidental part of an action. It cannot be a special proceeding because the two terms, “action” and “special proceeding,” are used in the Code in contradistinction to each other. In re Central Irr. Dist. 117 Cal. 382, 49 Pac. 354; State ex rel. Heinze v. District Court, 28 Mont. 227, 72 Pac. 613.
Being a provisional remedy and not a special proceeding, the next question arising is whether an order refusing to suppress or prohibit the examination “continues” a provisional remedy. Here, also, there is evident confusion in our decisions. In State ex rel. Carpenter v. Mathys, 115 Wis. 31, 91 N. W. 114, it is held without discussion that an order denying a motion to limit the subjects of examination under sec. 4096 is not appealable because it neither “grants, refuses, continues, or modifies” a provisional remedy; on the other hand, it was held in Phipps v. Wis. Cent. R. Co. 133 Wis. 153, 113 N. W. 456, that an order requiring a witness to submit to examination under sec. 4096, and an order refusing to restrain a party from taking depositions of witnesses under that section, were both appealable because they “continue” a provisional remedy. This decision was fol
The early case of Howell v. Kingsbury, 15 Wis. 272, is cited in the Phipps Case as authority for the doctrine of appealability. That case was an appeal from an order refusing to dismiss a writ of attachment, and it was held that such an order “continued” the attachment within the meaning of the appeal statute. It is to be noted that the two remedies are different, in that examination under sec. 4096
It is suggested that if it be held that no appeal lies from such an order there will be opportunity for serious abuses, in'that inquiry may be made into the affairs of a business rival for illegitimate purposes, thus seriously invading privacy and property rights. The answer is that every delegation of power to an official carries' with it possibility of abuse; nevertheless power must be vested somewhere if government is to be carried on. The judges of the trial courts are chosen for the very purpose of exercising the power necessary to be exercised in the administration of the law in the courts. Presumably that power will be wisely and justly exercised. If appeals were allowed from every important ruling there would never be an end of litigation. We are satisfied that our present ruling is not merely logical, but will tend to the simplification of procedure and the speedy attainment of justice in the courts.
By the Court. — Appeal dismissed.
Dissenting Opinion
(dissenting). The order appealed from in this case was one permitting respondent to continue a provisional remedy theretofore commenced by it.
This appeal statute was under consideration in Phipps v. Wis. Cent. R. Co. 133 Wis. 153, 113 N. W. 456, in 1907, and precisely'the same question as here involved was held properly appealed. Page 155. That decision was based upon Howell v. Kingsbury, 15 Wis. 272, decided in 1862, the statute then reading exactly as now. Many cases deciding important questions as to the rights of a person required to submit to such an examination have been disposed of by this court on just such an appeal as herein without question.
The right of an individual to be protected from any proposed examination which is without warrant of law is every whit as substantial a right as is that of an opposing party to have such an examination when thereunto lawfully entitled. Heretofore this court has entertained appeals by either side on such questions. From now on appeals by the latter will be heard, by the former will be dismissed.
In view of the continued acquiescence by the legislature in this statute without change; this court’s former rulings thereon; the absence of any suggested evil or need of change, I see no good reason for now overturning the former long and well established rule.