Yaeger v. Fenske

15 Wis. 2d 572 (1962)

YAEGER and wife, Respondents, v. FENSKE, Appellant.

Supreme Court of Wisconsin.

January 11, 1962.

February 6, 1962.

For the appellant there was a brief by Demet & Demet of Milwaukee, and oral argument by Francis J. Demet.

For the respondents the cause was submitted on the brief of H. J. Sanville of Milwaukee.

HALLOWS, J.

The defendant is precluded from appealing this order by sec. 274.33 (3), Stats., which provides, in part, as follows:

*573 "... no order of the circuit court shall be considered appealable which simply reverses or affirms an order of the civil court of Milwaukee county, unless the order of the civil court grants, refuses, continues, modifies, or dissolves a provisional remedy or injunction."

In Meyers v. Sohrweide (1949), 254 Wis. 389, 36 N. W. (2d) 584, we held that an order affirming an order of the civil court overruling a demurrer to a complaint was not appealable under the provision of this statute. A contrary result was reached in Danielson v. Garage Equipment Mfg. Co. (1913), 151 Wis. 492, 139 N.W. 443. However, at that time sec. 3069 (now sec. 274.33), Stats., did not contain such a provision. In 1915, two years after Danielson was decided, sec. 3069 was amended to include the above provision. See ch. 219, Laws of 1915, sec. 3069 (3), Stats. The order of the civil court did not involve a provisional remedy or an injunction.

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. Estate of Baumgarten (1961), 12 Wis. (2d) 212, 107 N. W. (2d) 169; Kimmel v. Kimmel (1960), 9 Wis. (2d) 484, 101 N. W. (2d) 666; Mitler v. Associated Contractors (1958), 3 Wis. (2d) 331, 88 N. W. (2d) 672. We are not concerned here with an irregularity which may be waived. Under the statute we lack the necessary jurisdiction to decide this appeal.

By the Court.The appeal is dismissed.

GORDON, J., took no part.