Putney v. Milwaukee Light, Heat & Traction Co.

Maeshall, J.

The only part of the appeal statute in any way referring to orders of the sort here involved is subd. 1, see. 3069, Stats. 1898, providing for an appeal in case of “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 here ■does not in effect determine the action and prevent a judgment •from which an appeal might be taken, hence it is not appeal-able and the attempted appeal did not .confer any jurisdiction ■on this court. Mills v. Conley, 110 Wis. 525, 86 N. W. 203; Sutton v. C., St. P., M. & O. R. Co. 114 Wis. 647, 649, 91 N. W. 121; Maxon v. Gates, 118 Wis. 238, 239, 95 N. W. 92; Deuster v. Zillmer, 119 Wis. 402, 97 N. W. 31.

The learned counsel for appellant, before the cause was ■called for argument, came to appreciate the predicament above indicated, but requested tbe court to express an opinion upon tbe merits of tbe case before dismissing tbe appeal because of tbe importance thereof in view of numerous pending actions, citing as justification for so doing instances where that course was adopted. Tbe practice of rendering an opinion in a case where there is no valid appeal, where in reality tbe cause has not yet reached this court, is of such doubtful propriety that tbe very few instances where that has been done cannot be regarded as precedents to be followed, especially in tbe absence of some peculiar necessity therefor. There does not seem to' be any such necessity in this instance, — no necessity of 'such overpowering character, if there could be one, really justifying the court in speaking outside its jurisdiction.

By the Court.- — The appeal is dismissed.