#### American *Food*Products Company, Respondent, vs. Winter, imp., Appellant.

*November 15*

December *5, 1911.*

*Appeal: Who may tahe: Parties: Special proceedings: Adverse examination: Officer of corporation.*

An action having been brought against several corporations and an officer thereof, a petition of the latter for the suppression of a proposed examination of him under se.c. 4096, Stats. (Laws of 1909, ch. 84), was granted so far as it sought to suppress such examination of him as a personal defendant, and the action was dismissed as to him, but the order permitted his examination as an officer of the corporations. *Seld*that, the action having been dismissed as to him, such officer was no longer a party thereto and had no right of appeal on that ground; while if the order be deemed to be one made in a special proceeding instituted by him, he is not an aggrieved party and therefore cannot appeal.

Appeal from an order of tbe circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.

*Dismissed.*

Iu this action *A. G.*Winter, Marsden Company, a corporation, American Milling Company, a corporation, and American Milling Company, a consolidated corporation, were named as defendants. A summons, notice, and affidavit for examination under sec. 4096, Stats. (Laws of 1909, cb. 84), before issued joined, and a *subpoma duces tecum*to *Winter,*the appellant, were issued and served, as appellant claims, upon him only, and, as plaintiff claims, upon American Milling Company as well. The appellant presented to the circuit court a petition and amended petition to have the proposed examination suppressed and denied, the subpoena suppressed, and the action dismissed as to him. The American Milling Company (in which the Marsden Company and the former American Milling Company are now merged and consolidated) presented to the circuit court its petition and amended *465petition to set aside tbe alleged service of tbe summons upon itself and tbe former corporations so merged and consolidated into it.

Tbe court ordered, first, tbat tbe petition of tbe appellant, in so far as it sought to suppress and deny tbe examination of tbe appellant as a personal defendant, be granted, and tbat tbe action as to bim be dismissed; and second, tbat tbe petition of tbe American Milling Company to set aside service upon it be denied. Tbe order permits tbe examination of tbe appellant, not as a defendant,' but as an officer of tbe defendant corporations. *A. 0. Winter*appeals from tbe order in so far as it denies and fails and omits to grant bis petition praying for tbe suppression and denial of bis examination as an officer of tbe defendant corporations or any of them, and from tbat portion of said order wbicb denies and fails and omits to grant bis said petition. No appeal having been taken on behalf of tbe plaintiff, tbe order dismissing tbe action as to appellant is conclusive.

Eor tbe appellant there were briefs by *Miller, Mack <& Fair-child,*and oral argument by *F. 8. Mack.*

Eor tbe respondent there was a brief by *W. A. Hayes,*attorney, and *W. F. Thiel,*of counsel, and oral argument by *Mr. Thiel.*

KeRWIN, J.

Tbe contentions of tbe appellant are (1) tbat there is no action properly pending against tbe appellant personally; (2) no service of tbe summons has ever been made upon any other defendant, therefore there was an attempt to examine tbe appellant in tbe absence of due commencement of an action; (3) even assuming service upon defendant American Milling Company, there can be no cause of action against tbat company arising out of tbe transaction referred to in tbe affidavit maintainable in Wisconsin; (4) tbat tbe plaintiff is not entitled to examination for tbe reason tbat it now has all tbe information required in order to plead, and *466that tbe subpoena, in so far as it calls for tbe production of' boobs and documents, should have been suppressed, and that to require appellant to remain within the state for examination under the facts of the case, or require him, a nonresident, to produce papers within the state which it would be necessary for him to go out of the state and bring back, would violate sec. 1, Amendm. XIV, Const, of U. S.

Many questions are discussed upon this appeal which in our view of the matter are wholly immaterial and unnecessary to be considered. It is conceded upon the record that the action against the appellant has been dismissed, and he only appears in the record as an officer of the defendant corporations for examination as such. Whether there was a valid service upon the defendant corporations or not we think unnecessary to consider upon this appeal. The appellant clearly is not a party after the action had been dismissed as to him, therefore had no right of appeal on that ground. But it is argued by appellant that the order is an order in a special proceeding, and the appellant having instituted such proceeding has a right to appeal from the order. If it can be said that the appellant is a party to a special proceeding, he is not an aggrieved party, and only an aggrieved party can appeal. Sec. 3048, Stats. (1898) ; *State v. Wis. T. Co.*134 Wis. 335, 113 N. W. 944; *Phipps v. Wis. Gent. R. Co.*133 Wis. 153, 113 N. W. 456; Voss *v. Stoll,*141 Wis. 267, 124 N. W. 89; *McGregor v.*Pearson, 51 Wis. 122, 8 N. W. 101; *Eureka S. H. Co. v. Sloteman,*67 Wis. 118, 126, 30 N. W. 241; *Ackley v.*Vilas, 79 Wis. 157, 160, 48 N. W. 257; *Shabanaw v. C.*C. *Thompson & W. Co.*80 Wis. 621, 50 N. W. 781; *Bragg v. Blewett,*99 Wis. 348, 355, 74 N. W. 807; *Phipps v.*Wis. *Cent. R. Co.*130 Wis. 279, 110 N. W. 207.

The court below refused to quash the service on defendant corporations and the *subpoena duces*tecum, and of this the appellant cannot complain on this appeal. But it is said the appellant may be prejudiced by the fact that he is required *467to attend as a witness and may be compelled to go beyond tbe state to procure books and documents and return with them and testify. But no such order has yet been made. The appellant is neither a party to the action nor aggrieved by the order.

We think the order is not appealable.

*By the Gourt.*— Appeal dismissed.