Parker v. McAvoy

36 Wis. 322 | Wis. | 1874

Cole, J.

The motion to dismiss the appeal in this case must be sustained for the reason stated in the motion.

The notice of appeal states that the appeal is from the judgment and from the order denying the motion for a trial de novo in the circuit court. It is manifest that the appeal was double and clearly irregular, under the decisions in White v. Appleton, 14 Wis., 190; Chamberlain v. Sage, id., 193; and Sweet v. Mitchell, 17 id., 125.

In addition to this objection, if the appeal could be held good either as an appeal from the judgment or order, then it was taken too late. The record shows that judgment was rendered in the cause on the 29th day of September, 1871; also, that no appeal papers were served until April, 1874. Appeals from judgments in civil actions must be taken within two years from the entry thereof. This is the express language of the statute. Tay. Stats., 1635, § 9. If the appeal be considered as taken from the order, it is equally obvious that it was barred by lapse of time. For, as it is forcibly argued by counsel for the respondent, it would be a strange and most unreasonable construction of the appeal statute, to hold that it gave a party the right to appeal from an interlocutory order after the period for appealing from the final judgment had expired. The provision in question leads to no such absurd consequences. True, we have held that the right to appeal from an order was not barred until the expiration of thirty days after service of a witten notice of the making of the order upon the party appealing. Van Steenwyck v. Miller, 18 Wis., 320; Corwith v. The State Bank, id., 560; Couldren v. Caughey, 29 id., 317. But the doctrine of those cases has no application to an appeal from an interlocutory order where the period for appealing from the final judgment had expired, and should not be so understood. For if a party could appeal from such an order after the lapse of two years, it is difficult to see any reason for denying his right to appeal at any time, and litigation in the cause would never end.

By the Court. — The appeal is dismissed.