Opinion
No. 103.
Argued: January 7, 1969.
Decided: February 4, 1969.
APPEAL from an order of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Appeal dismissed.
For the appellants there was a brief by Usow, Teper Weiss of Milwaukee, and oral argument by Herbert L. Usow.
For the respondents there was a brief by Fisher Lilly of Milwaukee, and oral argument by Sydney B. Lilly.
On July 26, 1966, plaintiffs commenced this action by service of a summons and affidavit for discovery upon the defendant, D. M. Builders, Inc., a Wisconsin corporation. On December 6, 1966, the complaint was served charging that there were alleged defects in a home built by the defendant for the plaintiffs pursuant to a written contract. The action was one for breach of express warranty, breach of implied warranty, negligence and fraud. Defendant D. M. Builders, Inc., filed an answer to the complaint on February 4, 1967. On April 25, 1967, an amended summons and complaint were served upon defendant, D. M. Realty, Inc., joining this defendant in the action on allegations sounding in fraud. Defendants D. M. Builders, Inc., and D. M. Realty, Inc., filed answers to the amended complaint on May 10, 1967. Notice of trial and certificate of readiness were filed on May 12, 1967.
On February 13, 1968, a substitution of counsel for the defendants took place and present counsel was retained. Following this substitution, an order to show cause was brought before the Honorable RONOLD A. DRECHSLER in circuit court for Milwaukee county, branch 7, asking that the defendants be permitted to amend the amended answer and implead other defendants. Following the hearing on the order to show cause, the court, on June 17, 1968, entered an order denying the defendants permission to implead such other defendants. Defendants appeal from this order.
There is but one issue presented: Is an order denying defendants' motion to implead six new parties defendants appealable?
Appellants contend that the trial court erred in its order of June 17, 1968, denying their motion to implead others as defendants. They contend (1) that under sec. 260.19(1), (2), and (6), Stats., they had a right to implead additional parties, and (2) that even if not entitled as a matter of right to implead additional parties, it was an abuse of discretion on the part of the trial court to deny their motion. However, before this court can examine the merits of these allegations, the order of June 17, 1968, must be appealable. It is not.
The statute governing appealable orders is sec. 274.33. The many cases interpreting this statute uniformly hold that the order in question is not appealable.
These cases clearly establish that when a trial court denies the motion of a party to the action to implead other persons, that order is not appealable for the reason that a party to an action can have that and other intervening orders reviewed on an appeal from the final judgment. However, when a trial court denies the motion of a nonparty to intervene and be made a party to the action, that order is appealable for the reason that such a person cannot appeal from the final judgment.
State v. Chippewa Cable Co. (1963), 21 Wis.2d 598, 609, 124 N.W.2d 616; Brody v. Long (1961), 13 Wis.2d 288, 292, 108 N.W.2d 662; State v. McDonald Lumber Co. (1960), 9 Wis.2d 206, 207, 100 N.W.2d 701; Stobbe v. Atkinson (1958), 4 Wis.2d 178, 183, 90 N.W.2d 118; Jones v. United States Fidelity Guaranty Co. (1932), 210 Wis. 6, 7, 8, 245 N.W. 650, and cases cited therein.
Respondents' request for double costs, made on oral argument, is denied.
By the Court. — Appeal dismissed with costs.