Razall v. Razall ( 1949 )

On September 27, 1948, Norton A. Torke, administrator of the estate of Clara R. Razall, petitioned the circuit court to have determined and awarded and adjudged to him in arrearage a permanent alimony due to Clara R. Razall against the defendant Harry M. Razall at the time of the death of Clara, due to delinquencies in payment of such alimony. During the pendency of the action Norton A. Torke died and William M. Kelley was appointed administrator. Later Jeremiah J. Kelly, divorce counsel of Milwaukee county, was named a party defendant. The order is to the effect that the amount of unpaid alimony aggregates $5,075 and this was due to deceased plaintiff at the time of her death; that there were also arrearages amounting to $32.70 for disbursements. Defendant appeals. The first contention of the respondent in this case is that the order is not an appealable order. After recitals the order is as follows:

"It is ordered and adjudged, that the alimony which is accrued and which is now unpaid comprises amounts of thirty-five ($35) dollars each, which became due and payable on the first and fifteenth days of each month beginning with February 1, 1942, and ending with February 1, 1948, such payments aggregating five thousand seventy-five ($5,075) dollars, that said sum was due to the deceased plaintiff at the time of her death; no part of which has been paid; that in addition thereto the defendant is in arrears in the amount of thirty-two and 70/100 ($32.70) dollars for disbursements incurred by the plaintiff, payable June 4, 1942, with interest if any is allowable thereon according to law.

"It is further ordered and adjudged, that the petitioner may take such other remedies for the collection of said arrears as he may have under the law."

This is neither an order nor a judgment. While couched in the language of a judgment it is nothing but a finding of fact and is not appealable either as an order or a judgment. It does not affect a substantial right, determine the action, or prevent a judgment from which an appeal might be taken. Neither is it a final order upon a summary application in an action after judgment. It adjudicates nothing.

No appeals lie from findings of fact. Estate of Lewis (1932), 207 Wis. 155, 240 N.W. 818; Witt v. Wonser (1928), 195 Wis. 593, 219 N.W. 344; Dawley v. Dawley (1944), 246 Wis. 306, 16 N.W.2d 827; Gertz v. Gertz (1948), 252 Wis. 286, 31 N.W.2d 620.

By the Court. — Appeal dismissed.