Wagner v. Racine County

Barnes, J. Two actions were pending in the circuit court for Bacine County to recover damages for the death of one Wagner, one against the T. L. Smith Company and the other against Bacine County. It is the contention of the plaintiff that the defendants in said actions were joint tort-feasors and that Wagner’s death was proximately caused by the concurring negligence of both defendants. On plaintiff’s motion the two actions were consolidated, and the defendant Bacine County appeals from the order of consolidation. If the order is appealable it must be because of the provisions contained in sub. (1) of sec. 3069, Stats. No other part of the section could possibly be applicable. The order is not appealable under sub. (1). It is only an order affecting a substantial right, “when such order in effect determines the action and prevents a judgment from which an appeal might be taken,” that is made appealable by said subdivision. If it should be conceded that the order in question affects a substantial right, which is, to say the least, doubtful, we fail to see how it can possibly be said that this order either deter [365] mined tbe action or prevented a judgment from which an appeal might be taken. The action against Racine County> is still pending; so it is not determined, and after the action is tried a judgment may be entered from which an appeal can be taken. Two essential conditions to the appealability of an order under sub. (1) are lacking. It follows that if the statute means what it says the appeal cannot be entertained. The appellant does not attempt to argue that the order is one which falls within the class of orders made appealable by sec. 3069. It does that, however, which is ordinarily more efficacious than mere argument, it points us to one of our former decisions in which just such an order was held appealable. Winninghoff v. Wittig, 64 Wis. 180, 24 N. W. 912. It is also true that the court entertained appeals from orders of this kind in other cases where the question of ap-pealability was not raised or considered by the court. It would he interesting to know by what process of reasoning the court reached its conclusion in the Winninghoff Case. It was clearly of the opinion that the order was appealable,, and this is all that is said about it. The statute has been, changed since this case was decided, by eliminating what was sub. 4 of sec. 3069, E. S. 1818, but it is difficult to see how the change accounts for the conclusion reached in the case-under discussion. The repealed provision made an order which involved the merits of an action or some part thereof' appealable, but the order could hardly have been held appeal-able under such a proviso, inasmuch as the merits , of the action would not appear to have been involved. The briefs in the Winninghoff Case do not help us-very much. The only reference to the question is the following: “The order appealed from is not appealable because it is an intermediate order which does not afEect any substantial right of the appellant.” Counsel seemed to think that if a final order affected a “substantial right” it was appealable. Possibly the. [366] court for some reason entertained tbe same view. This is only one of several requirements of the statute which must exist to make the order appealable. We think the case of Winninghoff v. Wittig was not correctly decided and that it countenances a rule of practice contrary to our statute law and calculated to promote delays in the trials of lawsuits and to increase the expenses thereof to suitors. The case is therefore overruled. By the Court. — Appeal dismissed.