Hartwig v. Harvey ( 1947 )

The plaintiff, Harvey C. Hartwig, commenced this action on October 2, 1945, against the defendants, Albert J. Harvey, Jr., Richard D. Harvey, Frank E. Harvey, and Clara V. Harvey to recover the sum of $37,761.72, alleged to be due the plaintiff from the defendants on account of legal services rendered by the plaintiff. The defendants answered by their attorney, Louis R. Potter, denying the allegations of the complaint, and by way of counterclaim alleged that the plaintiff was indebted to them in a large sum on account of damages which the defendants sustained by reason of the negligent, careless, and incompetent manner in which the plaintiff had discharged his duties as an attorney.

The appellant, Albert J. Harvey, Sr., sought to intervene in the action, and on the 15th day of October, 1946, the appellant procured an order from the circuit court for Milwaukee county, requiring the plaintiff to show cause why the appellant should not be made a party to the action pending between the plaintiff and the defendants. The order was based upon an affidavit which contains allegations to the effect that the plaintiff was his attorney; that he was derelict in his duty and exceeded his authority in certain respects; that the appellant has a good cause of action against the plaintiff, and that if his petition for intervention is not granted, he will be obliged to commence a new action on the identical set of facts that are involved in this action. The order to show cause was brought on for hearing, and the court denied the same on the ground that the petition of the appellant was not timely and was made too late and that the granting of the petition might delay the trial of the case. From the order denying appellant's application, he appeals. Whether the appellant should be made a party defendant to the action was a matter which rested in the sound discretion of the trial court. Wait v. Pierce (1926), 191 Wis. 202, 209 N.W. 475, 210 N.W. 822. It has long been held that while an appeal may be taken from a discretionary order, the matter will be reviewed solely to determine whether there was an abuse of discretion. If it is found that there was no abuse of discretion, the appeal will be dismissed. If there was an abuse of discretion, the order will be reversed. Jones v. Walker (1867), 22 Wis. *220; McCarville v.Boyle (1895), 89 Wis. 651, 62 N.W. 517; McElroyv. Minnesota Percheron Horse Co. (1901) 109 Wis. 116,85 N.W. 119.

From time to time the court has called attention to the fact that the situation is anomalous, in that upon an appeal from a discretionary order the court takes jurisdiction to determine whether there was an abuse of discretion and for that reason it is illogical to say that the order is not appealable. However, this is a practice which has been followed for a great many years and will be adhered to. McElroy v. Minnesota PercheronHorse Co. supra; Sly v. Kilbourn City (1910), 144 Wis. 203,128 N.W. 872.

However, there is a class of cases in which the rule does not apply. If a special proceeding is instituted by one who is not a party to an action as in this case, an appeal will lie from the order denying the application and the matter will be determined upon the merits. Where the application is denied, such an order is appealable under sec. 274.33 (2), Stats., being a final order in a special proceeding affecting a substantial right. State v. Wisconsin Telephone Co. (1908)134 Wis. 335, 113 N.W. 944; National Distilling Co. v. Seidel (1899), 103 Wis. 489, 79 N.W. 744; Ellis v. SouthwesternLand Co. (1896) 94 Wis. 531, 69 N.W. 363; Jones v.United States F. G. Co. (1932) 210 Wis. 6,245 N.W. 650.

If the special proceeding is instituted by a party to an action, the order is not appealable. See Jones v. United States F. G. Co., supra.

The trial court in this case did not abuse its discretion and for that reason the order must be affirmed.

By the Court. — Order affirmed.