On a motion for a rehearing, appellant’s counsel contended, 1. That to give the court below jurisdiction to make the order awarding issues, as against the appellant, two things were necessary: (1) The order to show cause should have named the appellant as a party; but there is no pretense that he is in any way named in such order. (2) It must have appeared to the court when the sitbseguent order was made, that the order to show cause had been served upon appellant’s counsel; but the record contains no proof of such service, and the recital in the subsequent order itself that their attorneys had “ had notice of this application,” is no proof of such service. 2. That since feigned issues are abolished by the statute (N. S., ch. 122, sec. 11), and every action is required to be prosecuted “ in the name of the real party in interest ” (sec. 12), the controversy between George W. Gady and other claimants of the moneys in the sheriff’s hands, on the one side, and the appellant, as assignee of the judgment, on the other, should have been by an action in the name of the former against the latter.
The following opinion was filed, upon the motion: .
Pee CueiaM. We are satisfied that this case was correctly *192decided on tbe grounds stated in tbe opinion. Tbe decision may be sustained, however, on other grounds. 1. Aside from tbe recital in tbe order, tbe record shows that Messrs. Cottrill and Cary were retained by tbe appellant in April, 1875, as bis attorneys to collect tbe judgment against tbe defendant Beek-man in tbe principal action, and that such attorneys were afterwards duly served with- tbe order to show cause why issues should not be awarded.
2. The record on this appeal shows that tbe issues awarded were determined by tbe final order or judgment of tbe circuit court, long before this appeal was taken. If tbe proceedings be regarded as in tbe nature of an action between tbe claimants of the moneys paid into court by tbe sheriff, we have here an appeal from an interlocutory order, taken after final judgment. Such appeals are not allowed. American Buttonhole and Sewing Machine Co. v. Gurnee, 38 Wis., 533; Victor Sewing Machine Co. v. Heller, et al., 657.
3. If this is a summary proceeding after judgment in the action of Allen v. Beekman, the order appealed from is not appealable, because not final. Tay. Stats., 1635, § 11.
Perhaps tbe appeal should have been dismissed for tbe reason that tbe order is not appealable; but as an affirmance of tbe order leads to tbe same result, we do not care to disturb tbe decision already made.
Motion denied.