Opinion
April 2, 1964 —
April 28, 1964.
APPEAL from an order of the circuit court for Milwaukee County: ROBERT W. LANDRY, Circuit Judge. Dismissed.
For the appellants there was a brief by McCormick Tessmer of Milwaukee, and oral argument by John E. McCormick and Henry A. Tessmer.
For the respondent there was a brief and oral argument by Kenneth J. Dunlap of Milwaukee.
A summons and complaint were served on the defendants, Phillip F. Tomasino and his wife, Phyllis, on September 7, 1962. The plaintiff sued in the alternative for damages or a deed of conveyance to certain real property in which he claimed a life estate.
The defendants served an answer and counterclaim on February 11, 1963. They denied that the plaintiff had any interest in the real property and made an affirmative claim for a sum of money representing back rent on the premises on which the plaintiff claimed a life estate.
The case was called to trial on August 8, 1963. On that day, the defendants moved in open court for judgment on their counterclaim on the basis that the plaintiff had failed to reply to the counterclaim. The ruling of the court on this motion appears in an order dated September 4, 1963, and pertinent portions of such order are as follows:
"The above-entitled case having been called for trial and the plaintiff being in default with respect to a reply to the counterclaim of the defendants, the court offered the plaintiff the option of granting to the defendants judgment on their counterclaim and dismissing the complaint of the plaintiff, or the alternative of the plaintiff paying to the defendants the sum of $50.00 within 24 hours, under which circumstances the plaintiff would be allowed to file a reply to the counterclaim of the defendants within 10 days.
"The defendants' motion for judgment on their counterclaim is denied unless the plaintiff fails to remit said sum of $50.00 within the time specified or if he fails to file his reply within 10 days."
The defendants' appeal is from the aforesaid order.
Statute Involved.
"274.33 APPEALABLE ORDERS. The following orders when made by the court may be appealed to the supreme court:
"(1) An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken."
The order which the appellants have challenged is not an appealable one, and therefore the merits of the matter are not properly before us. The issue of appealability was not raised by the parties, but nevertheless there is applicable what this court said in Yaeger v. Fenske (1962), 15 Wis.2d 572, 573, 113 N.W.2d 411:
"It is the duty of this court, notwithstanding no issue has been raised by counsel, to take notice of a point which goes to the jurisdiction of this court on appeal and to dismiss the appeal on its own motion, if the order of the trial court is not an appealable order."
A similar expression was set forth by the court in Szuszka v. Milwaukee (1961), 15 Wis.2d 241, 243, 112 N.W.2d 699, where it was said:
"The question of whether the order appealed from is appealable has not been raised. However, parties cannot, either by failure to raise the question or by consent, confer jurisdiction upon an appellate court to review an order which is not appealable."
The appellants contended in the trial court that they were entitled to a default judgment on their counterclaim because of the plaintiff's failure to reply. The trial court's order from which this appeal is abortively taken provided as follows:
"The defendants' motion for judgment on their counterclaim is denied unless the plaintiff fails to remit said sum of $50.00 within the time specified or if he fails to file his reply within 10 days."
In effect, the trial court gave the plaintiff the option of (1) suffering the default judgment which was sought in the counterclaim or (2) avoiding such judgment by the payment of terms and the filing of a reply within a fixed period of time.
The order in question was not one which "determines the action" and prevents a judgment from which an appeal might be taken under sec. 274.33, Stats. If the plaintiff paid the sum of $50 and also filed his reply, the case would then go to trial; if, on the other hand, the plaintiff did not do so, the defendants would be entitled to prepare a judgment from which an appeal could have been taken. It is clear, however, that the order itself does not "determine the action" and is therefore not appealable.
The order is comparable to other orders which this court has held to be nonappealable in the following cases: State Department of Public Welfare v. LeMere (1962), 17 Wis.2d 240, 116 N.W.2d 173; Willing v. Porter (1954), 266 Wis. 428, 63 N.W.2d 729; Ovitt v. Schumekosky (1924), 184 Wis. 618, 200 N.W. 375.
By the Court. — Appeal dismissed.