183 Wis. 477 | Wis. | 1924
We are constrained to hold that none of the provisions contained in the order of November 3d, as detailed above and from which the plaintiff attempted to
The only provision of sec. 3069, Stats., that could possibly authorize such review is sub. (1) thereof, reading as follows: “An order affecting a substantial right, made in any action, when- such order in effect determines the action and prevents a judgment from which an appeal might be taken.” But no such order is here involved.
We cannot now review the order requiring the complaint to be made more definite and certain. Milwaukee v. Milwaukee E. R. & L. Co. 172 Wis. 436, 179 N. W. 511; State ex rel. Schumacher v. Markham, 162 Wis. 55, 155 N. W. 917.
That a trial court may strike out a pleading or dismiss an action as a penalty for noncompliance with its order is well established. Central S. Co. v. Milwaukee-Waukesha B. Co. 166 Wis. 249, 164 N. W. 994; Nickerson v. Glines, 220 Mass. 333, 107 N. E. 942; 18 Corp. Jur. 1181; 9 Ruling Case Law, 204. But an order so dismissing is not appealable. Puhr v. C. & N. W. R. Co. 168 Wis. 101, 103, 169 N. W. 305. Neither is one refusing to dismiss. Gill v. Hermann, 168 Wis. 589, 171 N. W. 76; Raymond v. Keseberg, 98 Wis. 317, 321, 73 N. W. 1010.
While plaintiff may elect to stand upon his original complaint so far. as the individual defendant is concerned, still the payment of the motion costs provided for in the order of August 3d would not prevent a review, upon appeal from a final judgment, of so much of that order as directed the making of the complaint more definite and certain. The provision for the payment of the $10 costs of August 3d in the order of November 2d and here sought to be reviewed cannot make the latter order an appealable one. Welsher v. Libby, McNeil & Libby, 106 Wis. 291, 82 N. W. 143.
The other provisions of the order of November 2d are clearly not appealable.-
By the Court. — Appeal dismissed. No costs to respondent.