Milwaukee Corrugating Co. v. Flagge

Winslow, C. J. A motion to dismiss is made on the ground that the order in question is not appealable, and this must be first examined. If appealable, it must be because it is either “a final order [494] affecting a substantial right made in special proceedings,” or an order granting or continuing a provisional remedy. Sub. (2), (3.), sec..3069, Stats. ‘ Examination of the question convinces us that our decisions are in serious confusion upon it. Twice at least it has been said that an adverse examination under sec. 4096 is both a provisional remedy and a special proceeding. Phipps v. Wis. Cent. R. Co. 130 Wis. 279, 110 N. W. 207; Karel v. Conlan, 155 Wis. 221, 144 N. W. 266. We are now satisfied that this holding is illogical and erroneous and should be disavowed. The Code-(sec. 2594, Stats.) divides all remedies into (1) actions and (2) special proceedings. An action is distinguished from a special proceeding and vice versa. The term “special proceedings” includes only remedies not furnished by actions. Adverse examination under sec. 4096 is a mere proceeding within an action, an incidental part of an action. It cannot be a special proceeding because the two terms, “action” and “special proceeding,” are used in the Code in contradistinction to each other. In re Central Irr. Dist. 117 Cal. 382, 49 Pac. 354; State ex rel. Heinze v. District Court, 28 Mont. 227, 72 Pac. 613. Being a provisional remedy and not a special proceeding, the next question arising is whether an order refusing to suppress or prohibit the examination “continues” a provisional remedy. Here, also, there is evident confusion in our decisions. In State ex rel. Carpenter v. Mathys, 115 Wis. 31, 91 N. W. 114, it is held without discussion that an order denying a motion to limit the subjects of examination under sec. 4096 is not appealable because it neither “grants, refuses, continues, or modifies” a provisional remedy; on the other hand, it was held in Phipps v. Wis. Cent. R. Co. 133 Wis. 153, 113 N. W. 456, that an order requiring a witness to submit to examination under sec. 4096, and an order refusing to restrain a party from taking depositions of witnesses under that section, were both appealable because they “continue” a provisional remedy. This decision was fol [495] lowed sub silentio in State v. Milwaukee E. R. & L. Co. 136 Wis. 179, 116 N. W. 900, and Hathaway v. Bruggink, 168 Wis. 390, 170 N. W. 244, in both of which cases appeals from orders refusing to suppress or restrain the taking of depositions under sec. 4096 were entertained and decided upon the merits, no question being raised as to appealability of the orders. So, also, in Gratz v. Parker, 137 Wis. 104, 118 N. W. 637, an appeal from an order requiring a defendant to submit to an examination was entertained and decided on the merits without discussion of the question of appeal-ability. Appeals from similar orders were entertained and decided upon the merits in American F. P. Co. v. American M. Co. 151 Wis. 385, 138 N. W. 1123, and Sullivan v. Ashland L., P. & St. R. Co. 152 Wis. 574, 140 N. W. 316, nothing being said on the subject of appealability. The only theory upon which such orders as the present can be held appealable is the theory that they continue a provisional remedy, as stated in the Phipps Case. That theory is now for the first time sharply challenged and we have given the subject careful study, the result of which is that we are quite convinced that no such theory can be logically sustained. The right of examination under sec. 4096 is a right given by statute as a matter of course upon the filing of the required affidavit and is not dependent upon any action of the court. In refusing to interfere with the .right the court does not affect the statutory right in any way; it simply lets it alone. It is an entire misnomer to speak of such action as continuing anything, thus transforming a refusal to act into an affirmative action. The early case of Howell v. Kingsbury, 15 Wis. 272, is cited in the Phipps Case as authority for the doctrine of appealability. That case was an appeal from an order refusing to dismiss a writ of attachment, and it was held that such an order “continued” the attachment within the meaning of the appeal statute. It is to be noted that the two remedies are different, in that examination under sec. 4096 [496] is a right given by statute without court action, while attachment is a remedy given by a writ issued out of court. Whether or not this difference be sufficient to distinguish the two cases, we feel obliged to hold that the statutory remedy of adverse examination is not continued by a mere refusal to interfere with it. It is suggested that if it be held that no appeal lies from such an order there will be opportunity for serious abuses, in'that inquiry may be made into the affairs of a business rival for illegitimate purposes, thus seriously invading privacy and property rights. The answer is that every delegation of power to an official carries' with it possibility of abuse; nevertheless power must be vested somewhere if government is to be carried on. The judges of the trial courts are chosen for the very purpose of exercising the power necessary to be exercised in the administration of the law in the courts. Presumably that power will be wisely and justly exercised. If appeals were allowed from every important ruling there would never be an end of litigation. We are satisfied that our present ruling is not merely logical, but will tend to the simplification of procedure and the speedy attainment of justice in the courts. By the Court. — Appeal dismissed.