#### The Central National Bank of Milwaukee, Respondent, vs. Brand, imp., Appellant.

*September 23*

October *11, 1898.*

*Appealable order: Opening default: Undertaking to pay judgment*

An order, made before the entry of judgment, permitting a defendant who was in default to answer, upon condition that he file an undertaking to pay any judgment that might be recovered against him in the action, is not appealable under sec. 3069, R. S. 1878, as amended by ch. 380, Laws of 1897. .

Appeal from an order of tbe superior court of Milwaukee county: Geo. E. Sutherland, Judge.

*Appeal dismissed.*

This is an appeal from an order made June 25, 1898, in relation to tbe terms of granting tbe defendant leave to file an answer in and defend tbe case of *Center al Naüonal Bernia <o. Brand, impleaded, etc.*"Was tbe order appealable? Tbe action was to recover upon a note made by *Brand,*tbe appellant, to tbe plaintiff, for $1,200, dated August 11,1894, indorsed by tbe defendant Oairncross. *Brcmd,*having failed to answer tbe complaint witbin tbe prescribed time, obtained an order to sbow cause wby be should not be permitted to file and serve an answer in tbe action, and that proceedings, be stayed until tbe bearing and determination of tbe motion. It was based upon an affidavit of *Brand*that no judgment bad been entered in tbe action, and that no answer bad been served therein. Other affidavits were read at tbe bearing. Tbe court made an order that tbe motion of the defendant, be granted upon condition that witbin ten days after the service of a copy of tbe order upon tbe defendant or bis attorney be file with tbe clerk of tbe court a bond, with two sufficient sureties, in tbe penalty of $1,500, conditioned to-pay any judgment that might be recovered against him in tbe action, such bond to be first duly approved by the judge of tbe court as to form and sufficiency of sureties, and that thereupon tbe answer served with said motion papers stand *649as the answer of the defendant to the complaint, and that the plaintiff have twenty days after the expiration of the-ten days therein limited for the defendant to file such bond in which to reply or demur to said answer, if so advised. The defendant *Brand*appealed from that part of the order above stated fixing the condition upon which leave was granted to serve and file such answer, etc. The court required the defendant, as a condition of granting the relief sought, to file with the clerk an undertaking, with two sureties, to be approved by the court, both as to form and sufficiency of sureties, in the penalty of $1,500, conditioned to. pay any judgment that might be recovered in the cause, and all costs and damages which might be sustained by the plaintiff by reason of said appeal, and that upon filing such undertaking and the perfecting of said appeal within the time limited all proceedings in the action be stayed until the hearing and determination of said appeal.

The cause was submitted for the appellant on the, brief of *8arrmel*Rosendale, of counsel, and for the respondent on that of *Winkler, Flanders, Smith, Bottum & Vilas.*

Pinney, J.

The order in question is clearly not appeal-able. It is not within the category of appealable orders. R. S. 1878, sec. 3069, as amended by ch. 380, Laws of 1897 [sec. 3069, Stats. 1898]. Such order does not, in effect, determine the action, or prevent a judgment from which an appeal might be taken.

*By the*Court.— The appeal is dismissed.