Knowles v. Rogers

Pinney, J. The order in question does not grant, refuse, continue, or modify a provisional remedy, and is clearly not appealable, under subd. 3, sec. 3069, E. S. 1878, as amended by ch. 380, Laws of 1897, which includes within the category of appealable orders an order which “ grants, refuses, continues, or modifies a provisional remedy.” The order appealed from does not continue the proceedings, and no motion, was made to set aside, dismiss, or discontinue them. The order to show cause required cause to be shown why [234] the order made by the commissioner during the examination, “requiring the defendant to produce certain books, papers, etc., should not be vacated and set aside, and why a reasonable time should not be allowed the defendant within which to produce said books and papers after said defendant had had them examined himself by experts, and why the books and papers to be produced should not be distinctly specified.” The purpose of the order to show cause was to regulate the method of conducting the examination before the commissioner. * It was neither an order refusing, continuing, nor modifying a provisional remedy. The case 'dearly falls within the decision in Stuart v. Allen, 45 Wis. 158-162. The ruling of the superior court is neither an intermediate nor a final order, properly so called. It was merely a direction in regard to the manner of conducting •the examination pending before the commissioner, and in which the proceedings were to some extent discretionary. The motion was not made on the ground of any deficiency in the affidavit accompanying the notice of examination and subpoena. The defendant appeared and submitted to examination without making any such objection, and no such point appears to have been raised on the order to show ■cause. The case of Cleveland v. Burnham, 60 Wis. 16-20, is substantially to the same effect as Stuart v. Allen, and is decisive on the question of the appealability of the order. We are clearly of the opinion that the order in question is not within the category of appealable orders, and the appeal must therefore be dismissed. By the Court.— Appeal dismissed.