February 5, 1958 —
February 28, 1958.
APPEAL from an order of the municipal court of Racine county: HOWARD J. DuROCHER, Judge. Appeal dismissed.
For the appellant there was a brief by Harvey Harvey, attorneys, and Earle L. Christ of counsel, all of Racine, and oral argument by Richard G. Harvey, Jr.
For the respondent there was a brief by Foley, Capwell Foley of Racine, and oral argument by Rex Capwell, Jr.
Action by a real-estate broker to recover the amount of the commission alleged to be due plaintiff arising out of the sale of land.
After issue was joined the plaintiff moved for summary judgment, and the defendant moved for judgment on the pleadings and in accord with its offer of judgment in the sum of $2,434.67. Under date of August 14, 1957, the trial court entered an order which is entitled, "Order for Judgment." This order, omitting the preliminary recitals, reads as follows:
"It is ordered, that the motion of the defendant be granted,
"It is further ordered, that the motion of the plaintiff be denied,
"It is further ordered, that the plaintiff may have judgment in accordance with the defendant's offer of judgment dated July 19, 1956."
From such order the plaintiff broker has appealed to this court.
The appealability of the order in the instant case is controlled by the provisions of sec. 274.33, Stats.
An order denying an application for summary judgment is expressly made appealable by sub. (3) of such statute. However, an order for entry of judgment is not made appealable by such statute, and such an order is not appealable. Puhr v. Chicago N.W. R. Co. (1918), 168 Wis. 101, 103, 169 N.W. 305; Weiler v. Herzfeld-Phillipson Co. (1926), 189 Wis. 554, 560, 208 N.W. 599; Witzko v. Koenig (1937), 224 Wis. 674, 676, 272 N.W. 864; and Jaster v. Miller (1955), 269 Wis. 223, 233, 69 N.W.2d 265. The reason why such an order for judgment is not appealable is because it does not prevent a judgment from which appeal can be taken.
In the instant appeal counsel for the respondent have raised no issue as to whether the order appealed from is appealable. 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. Hempel v. Hempel (1921), 174 Wis. 332, 341, 181 N.W. 749, 183 N.W. 258; Richter v. Standard Mfg. Co. (1937), 224 Wis. 121, 126, 271 N.W. 14, 271 N.W. 914; and Jaster v. Miller, supra, at page 234. We quote from our opinion in Jaster v. Miller, supra, as follows (p. 234):
"Neither the waiver or consent of a respondent, nor the willingness of this court to consider a matter in the interests of justice, gives us authority to take jurisdiction where none is conferred by law."
We are thus confronted on this appeal with a situation in which that part of the order denying plaintiff's motion for summary judgment is technically appealable, while that part of such order, which directs that judgment be entered upon the pleadings for only the amount contained in defendant's offer of judgment, is not appealable.
However, it would be a useless gesture for us to pass upon the issue, of whether it was error for the trial court to have denied plaintiff's motion for summary judgment, so long as the judgment entered pursuant to the order is permitted to stand. The present appeal does not reach such judgment, and such judgment is res adjudicata on the issue of the amount of commission plaintiff is entitled to recover from the defendant. We, therefore, deem that the issue, of whether it was error to deny plaintiff's motion for summary judgment, to be moot, and one that this court should not pass upon. Hogan v. La Crosse (1899), 104 Wis. 106, 80 N.W. 105.
It does not appear from the record before us on this appeal when, if ever, judgment was entered as directed by the order appealed from. However, the plaintiff's only remedy is to appeal from such judgment.
By the Court. — Appeal dismissed.