Wood v. Blythe

42 Wis. 300 | Wis. | 1877

Pee CueiaM.

Appeal from an order of the circuit court vacating and annulling, as illegal and void, an order made by a court commissioner, ex parte and after judgment, extending the time for settling a bill of exceptions in the cause, and staying proceedings on execution thirty days.

If the order of the circuit court is appealable, it is by virtue of the fifth subdivision of sec. 10, ch. 264, Laws of 1860 (Tay. Stats., 1635, § 11), which gives an appeal to this court from an order made by the circuit court vacating or refusing to set aside any order made at chambers, where, by the provisions of'the act, an appeal might have been taken in case the order so made at chambers had been granted or denied by the circuit court in the first instance.

Disregarding the-question whether the commissioner had power, without notice of the motion therefor, to make the order which the circuit court vacated, we are to determine whether the order of the commissioner would have been ap-pealable had it been made by the circuit court. If an ajipeal will not lie from such an order, it does not lie from the order appealed from in the present case.

Tbe only provision o£ tbe statute applicable to this question is contained in tbe second subdivision of tbe section above cited, wherein an appeal is allowed from a final order affecting a substantial right, made upon a summary application in an action after judgment. Is such tbe character of tbe order made by tbe commissioner? "We think not. Tbe order was a matter of procedure, and does not affect a substantial right, in tbe sense in which that term is employed in tbe statute. On tbe contrary, it merely granted a favor authorized by tbe statute, but which tbe party could not claim as a right. See Jarvis v. Hamilton, 37 Wis., 87.

Appeal dismissed.