March 7, 1963 —
April 2, 1963.
APPEAL from an order of the circuit court for Waukesha county: CLAIR H. VOSS, Circuit Judge. Dismissed.
For the appellants there was a brief by Ray T. McCann and Richard A. McDermott, both of Milwaukee, and oral argument by Mr. McDermott.
For the respondent there was a brief by Samson, Bartell Nash, attorneys, and Maroney Schiro of counsel, all of Milwaukee, and oral argument by Thomas P. Maroney and Anthony Schiro.
This action was originally started on February 14, 1958. A judgment was entered on February 29, 1960. An appeal was taken from that judgment, and the decision of this court ordering a new trial was filed November 1, 1960. It appears in 11 Wis.2d 462, 105 N.W.2d 759. Upon a motion for rehearing, a memorandum by the court was filed on January 10, 1961.
The remittitur was filed in the office of the clerk of the circuit court for Waukesha county on February 8, 1961. No further proceedings were held until March 23, 1962, when the trial judge scheduled a pretrial hearing for April 30, 1962. An order to show cause why the case should not be dismissed by authority of sec. 274.36, Stats., was obtained by the defendants, returnable on April 30, 1962. A motion to strike defendants' answer and for judgment was brought by the plaintiff by an order to show cause dated April 25, 1962.
On August 7, 1962, the trial judge entered the following order:
"It is ordered that the answer and responsive pleadings of the defendants in the above-entitled matter be and they hereby are stricken, and the plaintiff may take judgment against the defendants upon submitting proof of damages, if any."
It is from this order that the defendants appeal.
The order appealed from is not an appealable order, and therefore this appeal must be dismissed. The order, in effect, directed the entry of judgment for the plaintiff upon his submission of proof of damages, if any.
An order directing the entry of a judgment is not an appealable order under sec. 274.33, Stats. Mitler v. Associated Contractors (1958), 3 Wis.2d 331, 332, 88 N.W.2d 672; Jaster v. Miller (1955), 269 Wis. 223, 233, 69 N.W.2d 265; Weiler v. Herzfeld-Phillipson Co. (1926), 189 Wis. 554, 560, 208 N.W. 599. The reason such an order is not appealable under sec. 274.33 is that it does not prevent a judgment from which an appeal can be taken. The same would apply to an order which strikes an answer.
Neither counsel raised the issue of the appealability of this order. As this court said in the Mitler Case, supra, at page 333:
"However, parties cannot, either by failure to raise the question or by consent, confer jurisdiction upon an appellate court to review an order which is not appealable."
The failure to recognize the issue of appealability has quite frequently caused counsel to prepare an appeal only to have it dismissed. Considerable briefing and expense is wasted on an abortive appeal. We invite mere careful attention to this problem by appellate counsel. How often this matter is overlooked is suggested by the following five cases in which appeals have recently been dismissed as nonappealable: Olson v. Augsberger (1962), 18 Wis.2d 197, 118 N.W.2d 194; State Department of Public Welfare v. LeMere (1962), 17 Wis.2d 240, 241, 116 N.W.2d 173; Herman Andrae Electrical Co. v. Packard Plaza (1962), 16 Wis.2d 44, 113 N.W.2d 567; 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. See Walther, Wisconsin Supreme Court Practice — Appealability of Orders and Judgments, Vol. 2, No. 4, Wisconsin Continuing Legal Education (Oct. 1962), p. 23.
By the Court. — Appeal dismissed.
WILKIE, J., took no part.