Noble v. Strachan , 32 Wis. 314 ( 1873 )

Lyon, J.

I. This is substantially an attempt to bring here for review two separate and distinct orders, by a single appeal. This court has held that this cannot be done, and that an appeal of that character is ineffectual for any purpose. White v. Appleton, 14 Wis., 190; Chamberlain v. Sage, id., 193; Sweet v. Mitchell, 17 id., 125. We must adhere to the rule established by these cases; and it is decisive of the fate of this appeal.

II. But I am of the opinion that neither of the orders is appealable, and that the appeal should be dismissed for that reason, without regard to the above question of practice. 1st. In Parmalee v. Wheeler, decided at the present term, we held that an order staying proceedings in an action until the determination. of an action pending in another state is not an appeal-able order. It is in the sound discretion of the court to grant an order staying proceedings; and if the party whose proceedings have been stayed is in danger of being unreasonably delayed by the order, he should move the court to vacate it ; and if the court refuse to do so, the order made upon such ruling can, probably, be reviewed on appeal therefrom. But until such refusal, it seems to me that the order staying proceedings cannot, in any correct sense, be said to affect the merits of the action. 2d. I think the plaintiffs had, and, notwithstanding the order of the circuit court, that they still have an absolute right to dismiss their action as to the defendant Strachan. This is the doctrine of the case of McLeod v. Bertschy (ante. p. 205), also decided at the present term. Hence, I think that the order denying the application for leave so to discontinue is a nullity, and may be disregarded entirely. If this view is correct, of course, such order is not appealable, for it cannot possibly affect the merits of the action. The plaintiffs may still enter an order, of course, dismissing their action against Strachan, on payment or tender of the taxable costs therein. It should be observed that the rule here laid down does not apply in a case where the defendant has interposed a counterclaim, as distinguished from a defense. (See McLeod v. Bertschy, supra.)

By the Court.— Appeal dismissed.