148 Wis. 600 | Wis. | 1912
Is the order appealable ? If it is, it must be because it is “a final order affecting a substantial right made in special proceedings,” under subd. 2, sec. 3069, Stats. (1898). In tbe instant case no action is pending, so tbe proceeding cannot be regarded as a provisional remedy under subd. 3 of sec. 3069, for a provisional remedy must always be in, or connected with, an action. Noonam v. Orton, 28 Wis. 386; Ellinger v. Equitable L. Assur. 8oc. 125 Wis. 643, 648, 104 N. W. 811; State v. Wis. Tel. Co. 134 Wis. 335, 113 N. W. 944; Snavely v. Abbott R. Co. 36 Kan. 106, 12 Pac. 522; 6 Words & Phrases, 5752; 32 Cyc. 742. Clearly, tbe application under tbe statute to perpetuate testimony, where no action is pending, is a special proceeding. See. 2596, Stats. (1898). That being so, is the order appealed from a final order in such proceeding and does it affect a substantial right ? In our judgment, it is neither final nor does it affect a substantial right. It is not final, because sec. 4133, Stats. (1898), provides that before tbe deposition shall be ordered recorded tbe court mus't 'find that it was taken according to law and tbe directions contained in tbe commission. Such finding involves tbe exercise,of a judicial act, an application of rules of law and tbe requirements of tbe commission to tbe deposition when returned. If it be found not to be taken conformably thereto, it cannot be ordered recorded, and if not recorded it cannot be used, since sec. 4134 provides that only depositions taken and recorded under tbe
So we conclude that tbe order appealed from is neither a final order in a special proceeding nor one affecting a substantial right, and for that reason tbe appeal must be dismissed; for if tbe order is not appealable this court acquires no jurisdiction to consider tbe merits. Hyde v. German Nat. Bank, 96 Wis. 406, 71 N. W. 659; In re Minn. &, Wis. R. Co. 103 Wis. 191, 78 N. W. 753.
By the Oourt. — Appeal dismissed.