June Term, 1860.

#### Rahn, administrator, vs. Gunnison.

Whether the law requires a summons, under the present practice, to he tested, *quc&re.*

A summons in an action in a county court was tested in the name of the judge of the circuit court for that county: *Held,*that the matter of the attestation did not involve “the merits of the action or any part thereof,” or “affect a substantial right,” and that an appeal does not lie from an order denying a motion to strike out the summons and complaint for irregularity and inconsistency, and to set aside a judgment regularly rendered in such action, for want of an answer.

Where a motion to open a judgment and allow the defendant to answer, was denied, hut no appeal was taken from the order denying the motion, the order is not before this court for review.

APPEAL from the County Court for *Milwauhee*County.

. The nature of this case appears sufficiently from the opinion *of*the court.

*/Small &*Cogswell, for appellant,

conten dec! that an appeal Jay from the order of the court denying the motion to vacate the judgment for irregularity in the summons (E. D. Smith, 349), and that the summons was irregular. 1 Code Rep., 118; 2 id., 75; 4 How. Pr. R, 154; 5 id., 233, 241.

*Von Deutsch fy Winlder, contra,*

contended that the order did not involve the merits of the action or any part thereof, and cited 10 How. Pr. R., 89, and 4 id., 329.

October 15.

*By the Court,*

Paine, J.

This action was commenced in the Milwaukee *cownty*court. This appeared on the face of the summons served, but it was irregularly attested in the *529name of tbe judge of tbe *circuit*court. Before tbe time for answering expired, tbe counsel for tbe defendant served notice of a motion to strike out tbe summons and complaint for this irregularity. But be obtained no order staying proceedings, and when tbe time for answering expired, judgment was regularly entered for want of an answer. Tbe motion to strike out tbe summons and complaint for irregularity was, afterwards brought to a bearing, tbe defendant claiming that tbe judgment should be set aside for that purpose, and it was denied. From tbe order denying it, this appeal is taken.

Tbe counsel for tbe respondent claims that tbe appeal should be dismissed for tbe reason that tbe order is not appealable. And we are of that opinion. It seems impossible to. say that tbe mere matter of having a summons properly attested involves tbe “merits of tbe action or any part thereof,” or “affects a substantial right” We have great doubt whether tbe law requires a summons under tbe present practice to be tested. There is no such requirement in chap. 124, B. S., which relates especially to that subject. If necessary at all, it results from chap. 186, which provides that all writs and process issuing from courts of record in this state shall be tested and sealed, &c. But it is very questionable whether a summons under the present practice is a writ or process within tbe meaning of this chapter or of tbe constitutional provision as to tbe style of writs. It is more in tbe nature of a notice from tbe plaintiff to tbe defendant, than of a mandate issuing from tbe state through its judicial tribunals. Before tbe Code was adopted, suits were authorized to be commenced by filing a declaration, entering a rule to plead and serving notice thereof on tbe defendant. B. S., 1849,' chap. 90, sec. 8. So the action of ejectment was required to be commenced in that way. ■ B. S., 1849, chap. 106, secs. 5 and 12. Those notices were not writs or process, within tbe meaning of tbe constitution, yet they were substantially like tbe summons of tbe Code. If this view is correct that a teste was not required by law, then this order certainly was not appealable. 10 How. Pr., 89. But even if tbe statute directs the summons to be tested, my own opinion still is *530that the order would not involve tbe merits, or affect a substantial right, within tbe intention of those provisions relating to appeals. I have always been of the opinion that those provisions were intended to have a more restricted meaning than lias been given them by some cases in New York They have held that all orders were appealable, except those relating to matters of practice which were entirely under the control of the court below and not regulated by jdos-itive statute. 4 How. Pr., 332. The opinion there delivered admits that there is a difficulty in arriving at the exact meaning of the language of the statute, and suggests several somewhat refined eonstruptions, which are rejected, and the one just suggested is adopted as being a “ rational, exact and well defined construction.” But I confess it seems to me that the obvious intention of the statute was to confine the right of appeal from orders, to those which are not only not addressed to the mere favor or discretion of the court below, but which also have some effect upon those rights which are litigated in the suit, and that it was not intended to give an appeal from every order relating only to the form or ceremony of the proceeding, even though in respect to matters regulated by statute, where the order could have no possible effect upon the rights litigated in the suit. I know of ■ no better illustration of my position than the one presented by tin's case, assuming that the law required a summons to be tested. If the law directed it, of course it would not have been left to the control, of the court, and the order refusing to set aside the summons would, according to these New York cases, be appealable. But is it not obvious to every mind that the order in such case would have had no more effect upon the rights of either party connected with the subject matter of the suit, than it would if the statute had not required the summons to be tested ? It seems to me so. Suppose the statute had said that the summons should be written in a beautiful handwriting, and the defendant had moved to strike it out because not so written. Would it not seem trifling to say that an order refusing, “involved the merits of the action ?” Yet it would, within the rale established by these cases.

*531Suppose in sucb case, after tbe order refusing to strike out tbe summons, tbe defendant should not appeal but plead to tbe merits, and tbe suit should be tried an,d judgment recovered against him. Could tbe order be reviewed here, as an intermediate ..order “involving tbe merits and necessarily affecting tbe judgment,” under tbe provision authorizing sucb orders to be reviewed ? Or would it be an error “ affecting a substantial right” within tbe meaning of sec. 40, chap. 125, which provides that the court shall, “ in every stage of an action, disregard any error or defect in tbe pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect ?” I think not, but on tbe contrary, that tbe phrases “ involving tbe merits” and “ affecting a substantial right,” relate only to tbe subject matter of the litigation, and not to mere matters of' practice which cannot affect that, whether regulated by statute or not. I think the word “ merits” has a settled legal meaning, excluding the latitude given to it in those cases. “Pleading, to the merits,” is a phrase of long standing, and distinguishes those pleas which answer the cause of action, and on which a trial may be bad, from those which are of a different character. 1 Ohit. PI, 510. “ Merits” is thus defined in BurrilPs Law Die.: “ Matter of substance in law; as distinguished from matter of form.” Matter of mere form, where it is prescribed by statute, becomes, under tbe New York cases, matter of substance, and a motion to strike out a summons for want of a teste, should be regarded as a plea to the merits. I think tbe statute used those words in a more restricted meaning, and that the order in question was not appealable.

The case shows a subsequent application, upon affidavit disclosing the defense and excusing tbe default, to open tbe judgment and allow tbe defendant to answer. But he did not appear at the hearing, nor was any appeal taken from the order denying the motion. That order therefore is not before-, us.

The appeal taken is dismissed, with costs.