Opinion
January 7 —
February 15, 1946.
APPEAL from part of an order of the circuit court for Milwaukee county: ROLAND J. STEINLE, Circuit Judge. Appeal dismissed.
For the appellant there were briefs by Treis Corrigan, attorneys, and Walter D. Corrigan, Sr., and Thomas M. Corrigan of counsel, all of Milwaukee, and oral argument by Walter D. Corrigan, Sr. George A. Bowman of Milwaukee, for the respondent.
The plaintiff, Louise Mayerhoff, commenced this action in the civil court of Milwaukee county, on the 9th day of February, 1944, to enforce a claim for compensation for services rendered against the Roxy Theatre Corporation. The trial court found —
"that the plaintiff is not entitled to be paid $18 per week for one hundred four weeks or for a total compensation as alleged in her complaint in the amount of $1,872 as she alleges is due her for services performed. . . . The court finds for the defendant dismissing the complaint of the plaintiff herein without costs to either party."
The complaint was dismissed accordingly, and from the judgment the plaintiff appealed to the circuit court. Upon the hearing the circuit court entered the following order:
"It is ordered that the judgment of the civil court of Milwaukee county, Wisconsin, be and the same is hereby reversed; and it is further ordered that said cause be remanded to the civil court of Milwaukee county to take further evidence in the case, if it be deemed necessary or advisable to do so, and to make findings of fact and conclusions of law in accordance with the requirements of section 270.33, Stats."
From this order, dated July 17, 1945, the plaintiff appeals to this court.
By ch. 399, Laws of 1935, sub. 3, sec. 28, ch. 549, Laws of 1909, as amended by ch. 255, Laws of 1933, was repealed and recreated to read as follows:
"Upon an appeal from a judgment of the civil court to the circuit court, the circuit court may reverse, affirm or modify the judgment, and in case of a reversal or modification the circuit court may enter such judgment as may be proper. Where, however, by reason of manifest prejudicial error in the trial of the action in the civil court any party thereto has not had a fair trial and where substantial justice cannot otherwise be done and the rights of the parties otherwise observed and protected, the judgment of the civil court shall be reversed, and the circuit court shall remit the case to the civil court for a new trial or further proceedings."
It was under this section that the circuit court entered the order reversing and remanding the judgment appealed from. That there is manifest error in the trial in the civil court and an entire failure to comply with the statute in regard to making findings can hardly be questioned. There is a clear dispute in the evidence, and the contention of the appellant that only one inference can be drawn from the facts cannot be sustained. Under these facts it was the duty of the circuit court under the provisions of sub. 3 to remand the case for further hearing. This is not in a technical sense a new trial. The case was remanded to complete the trial. The matter having been remanded to the civil court to enable it to complete the trial, the order is not a final order and for that reason not appealable.
By the Court. — The appeal is dismissed.