Sly v. Village of Kilbourn City

TimliN, J. The sixty days within which a proposed hill of exceptions should be served (sec. 2876, Stats. 1898) having •expired, the appellant applied to the circuit court for an order extending the time. The court on July 25, 1910, granted the motion, but upon condition that “the defendant stipulate that the cause be placed upon the August, 1910, term of the supreme court for the state of Wisconsin upon motion as by the •supreme court rules provided, and that they will, within ten ■days from the service of this order, perfect their said appeal.” There was also a provision to carry those conditions into effect ■and an imposition of ten dollars costs. This appeal is from that part of the order imposing conditions. Sec. 2831, Stats. (1898), gives the circuit court power, “on motion and good cause shown, in discretion and upon such terms as may be just, [to] allow any such proceeding to be taken after the time limited by or in pursuance of the statute.” Respondent first contends that the order is not appeal-able. Subd. 2 of sec. 3069, Stats. (1898), authorizes an appeal from a “final order affecting a substantial right made . . . upon a summary application in an action after judgment.” There is no question but that this was a final ■order made upon a summary application in an action after judgment. But it is contended that the order does not affect a substantial right and therefore is not appealable. [205] It baa long been a rule of practice in tbis court that upon appeal from discretionary orders, if tbe discretion of tbe court below bas been abused, tbe order will be reversed, but if it is found that tbe discretion bas not been abused tbe appeal will be dismissed. McCarville v. Boyle, 89 Wis. 651, 62 N. W. 517; McElroy v. Minnesota P. H. Co. 109 Wis. 116, 85 N. W. 119; Lessig v. Lessig, 136 Wis. 403, 117 N. W. 792. In tbe interest of uniformity tbis rule should be applied to an appeal of tbe bind in question bere, and in that sense tbe order is appealable. Ray v. Hixon, 90 Wis. 39, 62 N. W. 922; Evans v. St. Paul F. & M. Ins. Co. 54 Wis. 522, 11 N. W. 556; McElroy v. Minnesota P. H. Co., supra. Tbe language-used in Hatch v. Kurtzweil, 112 Wis. 231, 87 N. W. 1082, and Wood v. Blythe, 42 Wis. 300, stating generally that orders of tbis kind are not appealable, is too broad and should' be restrained. Tbe conditions annexed by tbe court below to tbe order in tbis case were within tbe power of that court and not unduly onerous. Tbe appellant at tbe date of tbe order bad tbe official stenographer’s transcript of tbe testimony. Tbe additional labor required for compilation of tbe bill of exceptions, was not great. Tbe appellant bad ample means and could have complied with tbe terms imposed, and its refusal to do so was without reasonable or just excuse. We find no abuse of discretion in annexing tbe condition complained of to tbe order in question, and therefore dismiss tbe appeal. By the Court. — Appeal dismissed.