Wilt v. Neenah Cold Storage Co.

Marshall, J. It is considered that the order is not ap-pealable. The only part of the appeal statute where such orders are referred to is the first clause of subd. 1, sec. 3069, Stats. 1898. The order is one “affecting a substantial right made in an action.” The second clause of such subdivision limits the right of appeal from such an order to cases where it “in effect determines the action and prevents a judgment from which an appeal might be taken.” If such orders were appealable prior to the law of 1895 (ch. 212), it was under subd. 4, sec. 3069, R. S. 1878, which was repealed by such law. An order of reference involves the merits (Cairns v. O’Bleness, 40 Wis. 469; Knips v. Stefan, 50 Wis. 286, 6 N. W. 877), and so is reviewable on appeal from the judgment under sec. 3070, Stats. 1898, but it does not prevent a judgment from which an appeal may be taken. It will be found that in the instances where such an order has been reviewed in recent years there was an appeal from the final judgment. Lyle v. Esser, 98 Wis. 234, 73 N. W. 1008; Johnson v. Goult, 106 Wis. 247, 82 N. W. 139; Jordan v. Estate of Warner, 107 Wis. 539, 83 N. W. 946; Parcher v. Dunbar, 118 Wis. 401, 95 N. W. 370; Hart v. Godkin, 122 Wis. 646, 100 N. W. 1057. Since appellant’s counsel carefully briefed the question of whether the cause, under the circumstances, was a proper one for a compulsory reference, and expressed an earnest desire for a decision of that question instead of the judgment appealed from being reversed under the rule, because of respondent’s failure to file a brief, we would certainly satisfy such desire if permitted to do' so, instead of allowing the question to remain in the case undisposed of and so a probable source of future difficulty, but we are not so permitted. The right of appeal is statutory, and where not so given, an appeal in form does not confer jurisdiction upon this court. By the Court. — The appeal is dismissed.