McElroy v. Minnesota Percheron Horse Co.

Maeshall, J. Where the only objection to an appeal from an order is that it was within the discretionary power of the trial court to grant or refuse it, and the order is one of a class of orders appealable by statute, this court must examine the record to see whether there was an abuse of discretion or not; and except in case of an order granting, refusing, or modifying an injunction, if no such abuse be discovered, the appeal must be dismissed. In short, in such a case jurisdiction of this court to entertain the appeal for the purpose of the entry of an order in the cause, depends upon whether the order appealed from was the result of an abuse of judicial discretion. The idea that the court may obtain jurisdiction for the purpose of determining whether the lower court exceeded, its power in a discretionary matter .and give the proper relief if such abuse be discovered, or lose such jurisdiction if there be no such discovery, so as to be powerless in that, event to, affirm the order appealed from, is not easy of satisfactory explanation. The rule in that regard, however, has been too long established to be .now open to question. Wood v. Blythe, 42 Wis. 300, upon which respondents rely, is in harmony with such rule. The order there was held not appealable because there was no abuse of discretion. In [119] Jones v. Walker, 22 Wis. 220, the following language on the subject was used: “It is familiar, that orders resting in the discretion of the court below to make or refuse, are not reviewable by appeal. But it is further held that when, in such cases, the court abuses its discretion, its action will be reviewed. And this is not inconsistent with the former proposition; because, when the court abuses its discretion, it góes beyond any discretionary powers that were intrusted to it, and it cannot be said that the order was within its discretion.’-' The quoted language, in view of the statutes as they now stand, must be limited to such orders as are mentioned in the first paragraph. To the same effect are: Crerar v. M. & St. P. R. Co. 35 Wis. 67; Lusk v. Galloway, 52 Wis. 164; McCarville v. Boyle, 89 Wis. 651; Adamson v. Raymer, 94 Wis. 243, 250; O'Connell v. Smith, 101 Wis. 68. The appeal was entertained in Spensley v. Janesville C. M. Co. 62 Wis. 549, and upon reaching the conclusion that there was no- abuse of discretion in making the order the court affirmed it. Attention was called to that departure from the settled practice, in McOcurville v. Boyle, supra. There was a like departure very recently in Schluckebier v. Babcock, 104 Wis. 293. There were like departures much earlier than Spensley v. Janesville C. M. Co. See Kennedy v. Waugh, 23 Wis. 468; London v, Burke, 33 Wis. 452. There are probably other cases of the kind, but evidently there was no intention in either instance to change the practice. In neither was the correct practice a subject for discussion or decision; while in a number of the cases cited, where it was held that the court only obtains jurisdiction on an appeal from- a dis: cretionary order for the purpose of determining whether there was an abuse of judicial discretion and must.dismiss, the appeal if no such abuse be discovered, the practice question -was fully considered and decided. It is a matter of very little practical importance, however, to the parties to an appeal, which method is adopted [120] in disposing of it under the circumstances discussed, since the result as to costs against the losing party, and as to subsequent proceedings, is the same whether the appeal.be dismissed because the order was so clearly right as not to be open to review, or it be formally affirmed on that ground. Noonan v. Orton, 30 Wis. 609. However, harmony with the rule early established, and which the court has evidently intended to follow at all times, requires us to hold that, as regards a discretionary order, “ appealability depends on abuse of discretion: if there be such abuse the order is appealable,” and the order should be affirmed; “ but if there be no abuse, then it is not appealable and the appeal should be dismissed.” ¥e are not unmindful of the fact that in Fairchild v. Deem, 13 Wis. 329, it was said that the remedy is not by appeal where the court abuses its discretionary power; but, as we have seen, that case has never been followed. The contrary is well established here, where the order belongs to any of the classes of appealable orders, which this does, being an order entered on a summary application after judgment, within subd. 2, sec. 3069, Stats. 1898. We have not overlooked the point made by appellant’s counsel, that, the order before us was grounded on an error of law as’ to the time when the right of appeal from the judgment ended, and not on the éxercise of judgment as to whether justice required the favor asked. It is conceded that there is nothing in the record upon which the contention can be considered. The order indicates that it was the judicial conclusion reached upon a strong case made by appellant excusing its neglect to seasonably settle the bill of exceptions, and a case made by respondents showing that the statements relied upon as such excuse were false in part and otherwise were not entitled to be considered sufficient. We cannot go outside of the order and the papers therein referred to, upon which it was made. We are unable to dis [121] cover any abuse of judicial discretion in tbe determination complained of. We shall not incumber this opinion by stating the leading allegations of the various affidavits that support that conclusion. It is sufficient to say that all the sworn statements made in support of the motion upon which the order was grounded were, under oath, denied on the other side, or explained or neutralized by other statements. The best that can be said in appellant’s behalf is that, looking at the moving papers alone, a good case was made for the favor asked, but that an equally good case was made by the opposing affidavits for denying such favor. In that situation it would be highly improper to disturb the decision of the trial court. It is further contended that there is duplicity in the appeal. That cannot be sustained. The statute (sec. 3049, Stats. 1898) allows an appeal from an order to be coupled with an appeal from the judgment in the action when the order by itself is appealable. There is no ambiguity in the language granting the right. The words are plain. They do not admit of any exception to their obvious meaning, suggested by respondents’ counsel, or any other that we are now aware of.' It follows that, if we were to hold that the order was appealable because of an abuse of judicial discretion, the appeal from the judgment could not be dismissed. • No error is assigned, going to the justice of the judgment on the record as it now stands. It is admitted that, without a bill of exceptions, no error exists that can work a reversal of it. Therefore the appeal as t'o the order must be dismissed, and the judgment appealed from must be affirmed. By the Court.— So ordered. It is further ordered that the appeal must be considered as single for the purpose of taxing costs.