130 Wis. 279 | Wis. | 1907
This is an action to recover damages on account of the death of Chas. Phipps, deceased, plaintiff’s husband, who was a locomotive engineer in defendant’s employ, and is alleged to have been killed by reason of the negligent and insecure construction of the railroad bridge on defendant’s road through which his engine was precipitated. The defendant’s answer denied all negligence. After issue was joined the plaintiff gave notice of taking the depositions of Charles M. Morris, the secretary, and of Thomas H. Gill, the general attorney, of the defendant company, as adverse witnesses, under the provisions of sec. 4096, Stats. 1898, and its amendments. The attendance of the witnesses before the
Appealable orders are classified and defined by sec. 3069, Stats. 1898. Eeference to that section demonstrates at once that if the order before us is^ appealable it must be because it is (1) a final order affecting a substantial right made in special proceedings, or (2) an order granting, refusing, continuing, or modifying a provisional remedy. It is settled that the examination of a party under the provisions of sec. 4096, supra, is both a special proceeding and a provisional remedy. An order made in tire course of such an examination, requiring the witness to produce books and papers, is, however, merely an interlocutory order regulating the manner of procedure upon the examination, and in no sense a final order; nor does it in any proper sense grant, refuse, continue, or modify the provisional remedy. These propositions have been fully settled by the court in previous decisions, and cannot be considered as open to doubt. Stuart v. Allen, 45 Wis. 158; Knowles v. Rogers, 99 Wis. 231, 74 N. W. 813; State ex rel. Carpenter v. Mathys, 115 Wis. 31, 91 N. W. 114; Ellinger
By the Oourt. — Appeal dismissed.