Nevil v. Clifford, 51 Wis. 483

Nevil v. Clifford

51 Wis. 483 | Wis. | 1881

Cole, O. J.

In this case the bill of exceptions recites that on the trial the defendants’ counsel objected to any testimony being given under the complaint, which objection was sustained by the circuit court. The plaintiffs’ counsel then asked leave to amend the complaint by inserting additional allegations; but the court refused to allow any amendment further than to set up therein what was admitted in the answers. In *484tbe brief of plaintiffs’ counsel it is stated, that tbe appeal is from tbe order dismissing tbe complaint. But it does not appear from tbe record that any order or judgment dismissing tbe complaint has ever been entered in tbe cause. Tbe objection is taken in limine, that there is nothing from which tbe plaintiffs could appeal. Tbe objection is insuperable. Of course there should have been a judgment entered dismissing tbe complaint. No appeal lies from anything contained in the hill of exceptions and not entered of record. The practice in these cases, where an objection is taken on the trial to a pleading, in the nature of a demurrer ore temos, is pointed out in Johannes v. Youngs, 42 Wis., 401. The plaintiffs should not only have settled their bill of exceptions, preserving their exception to the ruling of the court, but should have entered a judgment in accordance with that ruling, and then have taken an appeal from such judgment.

As the record stands, it is obvious there is nothing for this court to review, and the appeal must therefore be dismissed.

By the Court. — It is so ordered.

Cassoday, J., took no part.