Opinion
April 2, 1964 —
April 28, 1964.
Appeal from part of an order of the circuit court for Jefferson county: HENRY G. GERGEN, JR., Circuit Judge. Dismissed.
For the appellant there was a brief by Wickhem Consigny of Janesville, and Ruzicka, Fulton Lloyd of Burlington, attorneys, and Wickham, Borgelt, Skogstad Powell, and Kurt H. Frauen and Robert C. Watson of counsel, all of Milwaukee, and oral argument by Mr. Frauen.
For the respondent there was a brief by Garrigan, Keithley, O'Neal, Dobson Elliott and Donald L. Dobson, all of Beloit, and oral argument by Jerome Elliott.
This appeal is from that part of an order which allowed the defendant Louis F. Ohland, St., to amend his cross complaint against the Burlington National Bank, the impleaded defendant and appellant. Ohland while operating his employer's automobile in the course of his employment as a salesman was injured on November 9, 1959, when his automobile collided with an automobile driven by Antoinette Diener in Jefferson county. Miss Diener died on May 30, 1961, and the Burlington National Bank was appointed executor of her estate on August 1, 1961. On June 26, 1962, the plaintiff, the Travelers Insurance Company, who was the compensation carrier for Ohland's employer and who had paid temporary total disability benefits and medical expenses to Ohland commenced this third-party action pursuant to sec. 102.29, Stats., against Ohland and the Fidelity Casualty Company of New York, the insurer of Miss Diener. Ohland then impleaded the Burlington National Bank and filed a cross complaint against it and the Fidelity Casualty Company of New York for his damages, alleging Miss Diener was negligent and the sole cause of his injuries and the bank was the executor and trustee of Miss Diener's estate and had assets belonging to her estate. The bank demurred to the cross complaint on the ground of a defect of a party defendant in that the bank was sued in its proprietory rather than in its fiduciary capacity.
The court sustained the demurrer and granted leave to Ohland to amend the caption and the pleadings to more certainly identify the capacity in which the bank was being sued. Only that part of the order allowing the amendment of the pleadings is appealed. On oral argument on the merits, this court raised the question of appealability of the order and requested briefs on that issue, which briefs have been submitted.
Whether or not the issue is raised by counsel, this court must take notice of any matter which impinges its jurisdiction on appeal and will dismiss the appeal sua sponte if the order of the trial court is not appealable. In such cases we lack the necessary jurisdiction to decide the appeal.
Yaeger v. Fenske (1962), 15 Wis.2d 572, 113 N.W.2d 411; Szuszka v. Milwaukee (1961), 15 Wis.2d 241, 112 N.W.2d 699; 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.
The appellant contends the court's order sustaining the demurrer but granting leave to amend affected a substantial right of the bank since the statute of limitations had then run on the cause of action and also the order regardless of its form in effect overruled its demurrer by allowing an amendment of the pleadings. Recourse is thus had to sec. 274.33, Stats., governing appealable orders. By sub. (1) of this section, an order may be appealed if it affects a substantial right and in effect determines the action and prevents a judgment from which an appeal might be taken and by sub. (3) an order which sustains or overrules a demurrer is appealable. If the part of the instant order appealed from affects a substantial right of the appellant, it did not determine the action for the merits are still to be tried or prevent a judgment from which an appeal might be taken — at least not a judgment from which the appellant could appeal.
State Department of Public Welfare v. LeMere (1962), 17 Wis.2d 240, 116 N.W.2d 173; Russell v. Johnson (1961), 14 Wis.2d 406, 111 N.W.2d 193; Schlesinger v. Schroeder (1933), 210 Wis. 403, 245 N.W. 666.
We do not agree the order sustaining the demurrer with leave to plead over or amend the pleading constitutes in substance an order overruling the appellant's demurrer and thus adverse so as to permit it to appeal the order under sec. 274.33 (3), Stats. The sustaining of a demurrer is a separate, distinct, and complete act in itself. It does not necessarily entitle the successful party to a dismissal of the pleading as a matter of right. The court has the inherent power to grant leave to amend or plead over. The part of the order made in the exercise of this power has not been endowed with the attribute of appealability by the statute.
By the Court. — Appeal dismissed.