#### Sioux Land Company, Respondent, vs. Ewing and others, imp., Appellants.

*February 20*

March *12, 1912.*

*Evidence: Depositions to perpetuate testimony: Special proceeding: Appealable orders.*

1. An application under secs. 4117-4134, Stats. (1898), to perpetuate testimony, where no áetion is pending, is a special proceeding.

2. An order appointing a commissioner to take depositions to perpetuate testimony under secs. 4117-4134, Stats. (1898), is not a final order nor one affecting a substantial right, and is therefore not appealable. The order directing the deposition to be recorded is the final order in such proceeding.

Appeal from an order of tbe circuit court for Douglas county: EeaNK A. Ross, Circuit Judge.

*Dismissed.*

Pursuant to tbe provisions of secs. 4117 — 4134, Stats. (1898), tbe *Sioux Land Company*made application to tbe circuit court for Douglas county for tbe appointment of a commissioner to take depositions to perpetuate tbe testimony of certain persons named in tbe petition, relative to tbe title of lands in which petitioner claimed an interest, so that tbe same might be used as evidence against all persons, under tbe provisions of secs. 4130 — 4134, Stats. (1898). Tbe court granted tbe application, appointed a commissioner to take depositions, and refused, in part, to stay proceedings pending *601an appeal. Appellants, wbo claimed, title to tbe land in question, appeared in tbe court below, objected to tbe taking of depositions, and appealed from tbe order appointing a commissioner.

For tbe appellants there was a brief by *Gatlin, BvJtler*& *Lyons*and *S. B.*Alden, and oral argument by *Mr. Alden.*

For tbe respondent there was a brief by *Grace, Hudnall <&*Fridley, and oral argument by *Geo. B. Hudnall.*

Vinje, J.

Is the order appealable ? If it is, it must be because it is “a final order affecting a substantial right made in special proceedings,” under subd. 2, sec. 3069, Stats. (1898). In tbe instant case no action is pending, so tbe proceeding cannot be regarded as a provisional remedy under subd. 3 of sec. 3069, for a provisional remedy must always be in, or connected with, an action. *Noonam v. Orton,*28 Wis. 386; *Ellinger v. Equitable L. Assur. 8oc.*125 Wis. 643, 648, 104 N. W. 811; *State v. Wis. Tel. Co.*134 Wis. 335, 113 N. W. 944; *Snavely v. Abbott R. Co.*36 Kan. 106, 12 Pac. 522; 6 Words & Phrases, 5752; 32 Cyc. 742. Clearly, tbe application under tbe statute to perpetuate testimony, where no action is pending, is a special proceeding. See. 2596, Stats. (1898). That being so, is the order appealed from a final order in such proceeding and does it affect a substantial right ? In our judgment, it is neither final nor does it affect a substantial right. It is not final, because sec. 4133, Stats. (1898), provides that before tbe deposition shall be ordered recorded tbe court mus't 'find that it was taken according to law and tbe directions contained in tbe commission. Such finding involves tbe exercise,of a judicial act, an application of rules of law and tbe requirements of tbe commission to tbe deposition when returned. If it be found not to be taken conformably thereto, it cannot be ordered recorded, and if not recorded it cannot be used, since sec. 4134 provides that only depositions taken and *recorded*under tbe *602statute may be used. So until an order is made by tbe court directing tbe deposition to be recorded judicial action bas not terminated. Tbe order allowing tbe deposition to be taken is merely an intermediate order; tbe order directing to be recorded is tbe final one. No appeal lies except from tbe final order. *Jarvis v. Hamilton,*37 Wis. 87; *In re Schumaker,*90 Wis. 488, 63 N. W. 1050; *In re Minn. & Wis. R. Co.*103 Wis. 191, 78 N. W. 753; *Maynard v. Greenfield,*103 Wis. 670, 79 N. W. 407; *Kingston v. Kingston,*124 Wis. 263, 102 N. W. 577; *In re Horicon D. Dist.*129 Wis. 42, 108 N. W. 198. In *Kingston v. Kingston, supra,*tbe court said: *“A*final order in a special proceeding, within tbe meaning of tbe statute, is one which determines and disposes finally of tbe proceeding- — one which, so long as it stands, precludes any further steps therein.” Nor does an order appointing a commissioner to take depositions to perpetuate testimony affect a substantial right. Tbe depositions taken are innocuous till ordered to be, and in fact are, recorded. Tbe judicial act that gives them power to affect a substantial right is tbe order directing them to be recorded. Until that order is made tbe depositions are useless, they can barm no one, for they cannot even be recorded without an order of tbe court, much less used.

So we conclude that tbe order appealed from is neither a final order in a special proceeding nor one affecting a substantial right, and for that reason tbe appeal must be dismissed; for if tbe order is not appealable this court acquires no jurisdiction to consider tbe merits. *Hyde v. German Nat. Bank,*96 Wis. 406, 71 N. W. 659; *In re Minn. &, Wis. R. Co.*103 Wis. 191, 78 N. W. 753.

*By the Oourt.*— Appeal dismissed.