State v. Wisconsin Telephone Co.

| Wis. | Jan 28, 1908

The following opinion was filed November 26,1907:

MaRshall, J.

The point is made that the order is not ap-pealable. The only ground upon which the contrary is maintained is that the order terminates a special proceeding.

If appellant’s contention be sound then there may be a great many mere proceedings in the course of an action given the character of special proceedings so that an appeal will lie from the final determination thereof, such as a motion in the action for a change of venue or for security for costs, or to strike out part of an answer or complaint for some cause, or for a continuance or to suppress a deposition or to prevent an attorney coming into a case and controlling it without being regularly substituted, no one of which motions wo-uld be claimed, we assume, to be a legitimate foundation for an ap-pealable order.

Obviously the character of the proceeding in question was not changed by the mere formal manner the question was nre-sented, as by an elaborately drawn petition and a formal answer raising issues, followed by a trial, concluded by formal findings and conclusions as in case of the trial of an action by the court. Notwithstanding such very formal manner in which the motion was made, it was in effect a mere objection supported by proof, and the order was in effect a mere ruling upon such objection. We are unable to see how it can be regarded as a special proceeding within the meaning of the appeal statute. It is correctly conceded that the proceeding was not a provisional remedy. It was not a special proceeding, because such a proceeding is one either entirely outside of an action, as a proceeding for contempt or to condemn land, or one merely connected witb an action, as a proceeding by a person not a party to an action to be made snob. It bas been held that while tbe latter is a special proceeding an application by a party to an action to malte others parties is not, but is a mere proceeding in an action, and an order terminating tbe same is not appealable. Nat. D. Co. v. Seidel, 103 Wis. 489" court="Wis." date_filed="1899-06-22" href="https://app.midpage.ai/document/national-distilling-co-v-seidel-8186343?utm_source=webapp" opinion_id="8186343">103 Wis. 489, 79 N. W. 744. To the same effect are 2 Wait, Pr. 129, where it is said a writ of attachment issued as the commencement of an action is a special proceeding, but the attachment remedy under the Code being in the action is a provisional remedy, and 4 Wait, Pr. 128, where it is said that proceedings supplementary to execution being in an action are not special proceedings. Such was the view of this court in Noonan v. Orton, 28 Wis. 386" court="Wis." date_filed="1871-06-15" href="https://app.midpage.ai/document/noonan-v-orton-6600736?utm_source=webapp" opinion_id="6600736">28 Wis. 386, and Blossom v. Ludington, 31 Wis. 283" court="Wis." date_filed="1872-06-15" href="https://app.midpage.ai/document/blossom-v-ludington-6601084?utm_source=webapp" opinion_id="6601084">31 Wis. 283, as clearly indicated therein, and declared by Dixok, Chief Justice, who was of a somewhat contrary view, by his obiter remark in Witter v. Lyon, 34 Wis. 564" court="Wis." date_filed="1874-01-15" href="https://app.midpage.ai/document/witter-v-lyon-6601471?utm_source=webapp" opinion_id="6601471">34 Wis. 564.

It follows from what has been said that the proceeding in question being in and by a party to an action and for relief obtainable, if relief should be granted, by an ordinary objection or motion, it is not a special proceeding regardless of the unusual situation presented, therefore the order terminating the same was not appealable.

By the Court. — The appeal is dismissed.

WiNsnow, C. J., and Bashfobd, J., took no part.

A motion for a rehearing was denied January 28, 1908.