Waldo v. Rice , 18 Wis. 404 ( 1864 )

By the Oourt,

Dixoisr, O. J.

The order is not appealable. It is an order refusing to dismiss the cause for want of prosecution. A very cursory examination of. the statute will show that it does not belong to any of the classes of orders from which appeals to this court are given. Laws of 1860, ch. 264, sec. 10. It is not an order affecting a substantial right, and which, in effect, determines the action and prevents a judgment from which an appeal may be taken. It is not a final order affecting a substantial right in special proceedings, or upon summary application in the action after judgment. It does not grant, refuse, continue, or modify a provisional remedy, &c. It does not involve the merits of the action, or any part thereof; nor order judgment upon the frivolousness of a demurrer, answer or reply. Nor can it be brought within the fifth subdivision of the section, which gives no new ground of appeal. It seems to us so obviously without any of these classes as almost to exclude comment. The only ground upon which the right of appeal can possibly be claimed, is that the the merits of the action or some part thereof are involved. In one sense this may be true. Every order which prevents an abatement or dismissal of the action may be said indirectly to involve the merits. It hastens the case to a trial upon the merits. But this is not the sense of the statute. It is only where the merits themselves are determined by the order, that an appeal is given. In this case the appeal comes up upon a mere preliminary question of practice, not involving the merits. It is, whether the cause shall proceed to a trial upon the merits. The court decided that it should, and from that order there is no appeal.

Appeal dismissed.