Gianella v. Bigelow

Maeshall, J. Defendants interposed a demurrer to plaintiff’s complaint, which, on motion, was struck out as frivolous, and from the order entered on such motion this appeal was taken. The date of the appeal is not later than. the 23d day of May, 1896. That is the date of the bond. The notice of appeal is not dated, nor does it appear when it was served. The right of appeal is purely statutory. Western U. R. Co. v. Dickson, 30 Wis. 389. So, unless the statute gives [268] such right from an order striking out a demurrer as frivolous, it does not exist. Prior to ch. 212, Laws of 1895, subd.. 4, sec. 3069, S. & B. Ann. Stats., covered the subject, under ■which the right was clearly given in the following language: An order may be carried to the supreme court on appeal, “ when it involves the merits of the action or some part thereof; when it orders-judgment on application therefor, on account of the frivolousness of a demurrer, answer or reply, or strikes off such demurrer, cmsw&r or reply, on account of the frivolousness thereof.” But by ch. 212, referred to, which became a law April 12, 1895, sec. 3069 was amended by dropping out the whole of subd. 4 as it had theretofore existed, so that at the time this appeal was taken, the right in such cases did not exist. It is argued that, inasmuch as the motion to strike out under the practice established in this state brings the demurrer up for a hearing on the merits to all intents and purposes the same as if the issue was brought up for a hearing on regular notice of argument, the order should be held to be appealable, under subd. 3 of the revised section, which gives the right of appeal from an order overruling or sustaining a demurrer; but it is obvious that the section was amended for the very purpose of restricting appeals. The right formerly existed from an order striking out a demurrer on motion as frivolous, independent of the right from the order sustaining or overruling the demurrer. Therefore, though the effect of the two orders is substantially the same, if the issue is brought to a hearing on regular notice for the first day of the term, general or special, an appeal may be taken from the order sustaining or overruling the demurrer. If a party sees fit to resort to the ■ more summary method, by motion to strike out as frivolous, the order entered thereon will not be appealable. It follows that the appeal must be dismissed. By the Court.— The appeal is dismissed.