Rossiter v. Ætna Life Insurance

| Wis. | Jun 11, 1897

PiNNey, J.

In order to sustain its appeal, the appellant is obliged to contend that the order in question is appealable under subd. 3, sec. 3069, R. S., as amended by ch. 212, Laws of 1895, which provides for an appeal “ when an order grants, refuses, continues, or dissolves an injunction.” The argument is, in brief, that as an injunction is defined “ as a judicial process, whereby a' party is required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the writ” (2 Story, Eq. Jur. § 861), and as by statute the writ of injunction is abolished and now “is a command to refrain from a particular act” (R. S. 'sec. 2773), therefore a stay of proceedings, which is defined to be the act “ of stopping or arresting a judicial proceeding by order of the court or judge” (Burrill, Law Diet.), is, in substance, an injunction, and the conclusion is thus reached that an order refusing a stay of proceedings in an action is appealable as an order refusing an injunction. We have not been referred to any case or work on practice that sanctions such a loose and apparently unwarranted construction of the statute regulating appeals.

-An injunction by order, which is a substitute for the judicial-writ, operates upon the conduct of the parties and their attorneys, in respect to matters outside of those occurring in'the ordinary progress of the action. A stay of proceedings operates in relation to something within the usual course of judicial proceedings, and which the court, by its authority over the parties and their attorneys, can regulate and control without resort to the extraordinary writ of injunction. The fact that the injunction is now by order, instead of writ, does not extend its scope or operation. The language of the statute allowing an appeal, when an order “ grants, refuses, modifies, or dissolves an injunction,” must be aptly restrained to the particular shbject matter, and confined to cases of orders which in fact and in effect are within the proper scope of the writ of injunction, as formerly used and regarded as a judicial process. The change in form was not designed to extend or enlarge the scope of the statute in respect to appeals, sp as to bring within the special language quoted common orders granting or refusing a stay of proceedings in the ordinary course of the progress of the cause. The use of the language of the statute regulating appeals as to such orders can have only the same general significance the same language had before the order was substituted for the writ. The provision in respect to appeals in such cases deals only with matters which were formerly within the use and scope of injunction by judicial writ. The order, in the present instance, is one refusing an ordinary stay of proceedings in the common course of the action, and is not appealable.

By the Oourt.— The appeal is dismissed.