#### Smith, Appellant, vs. Shawano County and others, Respondents.

*October 15*

*November 5, 1890.*

*Appealable orders.*

1. An order modifying certain findings of fact and conclusions of law-in a manner different from that asked, and refusing to modify others, is not appealable.

2. An order taxing or relaxing costs is not appealable.

APPEAL from tbe Circuit Court for *Shawano*County.

Tbe facts are sufficiently stated in tbe opinion.

For tbe appeEant there were briefs by *Silas Bullard,*attorney, and *Lewis, Pfund & Briggs,*of counsel, and oral argument by *II. M. Lewis.*

For tbe respondents there was a brief by *M. J. Wallrioh*and *Geo. G. Greene,*and oral argument by *Mr. Greene.*

*673ORton, J.

The object of. this action is to have certain taxes and tax certificates declared void and the certificates canceled. The court made certain findings of fact and conclusions of law by which some of said taxes were found to be void, and certain of said taxes were found to be legal and valid. To such findings of fact and conclusions of law as were adverse to the plaintiff, he filed exceptions. lie then moved the court to modify the same. The court denied the motion except as to the sixth and seventh conclusions of law, and as to them the court modified the same, but not in accordance with the motion, and entered an order accordingly. The plaintiff has appealed to this court from said order. The appeal is therefore substantially from such modification of the sixth and seventh conclusions of law, and from the refusal of the court to modify the findings of fact and conclusions of law according to the motion. A part only of the findings of fact and conclusions of law is involved in the appeal.

The respondent moves to dismiss the appeal, on the ground that the order is not appealable. On account of the importance of the case, and the trouble and expense to which the parties have already been put,we regret that we are compelled to grant the motion and dismiss the appeal. The order is so clearly not appealable that our decision of the questions raised and so ably argued on the appeal would be nugatory. The order is a mere rule of practice during the progress of the trial. The motion was an attempt of the plaintiff to obtain from the court such findings of fact and conclusions of law as would support and require a judgment in his favor, and to settle and determine what they should be. An appeal from that part of the order denying the motion is indirectly, an appeal from the findings of fact and conclusions of law, and from that part modifying two of the conclusions of law is even more directly an appeal from them so modified, and such an appeal will not lie. *Webster-Glover L. & M. Co. v.*
      *674
      *St. Croix Co.*63 Wis. 647. It is not appealable, if for no other reason, because it does not prevent “ a judgment from which an appeal might be taken.” Sec. 3069, R. S. In *Bourgeois v. Schrage,*69 Wis. 316, an appeal from an order confirming the findings and report of a referee was held not to lie for the same reason that obtains here,— that the order merely constitutes them the findings of the court. An order for judgment is not appealable *(Murray v. Scribner,*70 Wis. 229); nor an order sustaining objection to any evidence under the complaint, and dismissing the complaint on that ground *(Johannes v. Youngs,*42 Wis. 401, and *Nevil v. Clifford,*51 Wis. 483); nor an order denying a motion for judgment in one’s favor *(Treat v. Hiles,*75 Wis. 265). The proper practice in such cases is to except to the rulings, and appeal from the judgment. The plaintiff in this case excepted to the findings of fact and conclusions of law which he moved to have modified.

The learned counsel of the appellant suggests that the order involves the costs in the case. That would make no difference, for that also is a part of the findings. An order taxing or retaxing the costs is not appealable, because it is before judgment. *McHugh v. C. & N. W. R. Co.*41 Wis. 79.

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