The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1862-04-03

j III,
ed, &C., with Ann NJ Bond, ct al, respondent
BY JUSTICE COLE.
This is an appeal from an order of the eli
cult court of Rock county, made in this cause
On the application of the respondent requirin.
the appellant to give security for costs in thu
action ~ written undertaking in the sum o
tive hundred dollars and staying all proceed
ings on the par; of the appellant until such Sc
eurity was fled and approved by the court; ant
| further directing that the cause be referred t.
| William II. Petit to take all the testimony t.
be given in this state which either party nigh
| desire to use on the trial of the same. it II
admitted that this order was entered under
and pursuant to sections one and ten of chap
| ter SO laws 1861.
! On the argument of this and other cases on
the calendar, involving the same question, g
preliminary objection was taken that such an
order, under our statute, was not appealable
| anu therefore that this court could not review
it. But in answer to this objection 1t is claim
ed that such an order is appealable on several
grounds 1t is claimed tbatit is appealable un
| der the first clause of section 10 chapter GOA
laws 1850 as being an order which affects a
substantial right by determining the action, land
presenting a Judgment from which an appeal
might be taken. We do think the order ia
| appealable under this clause Of the statute, 1t
eau hardly be said that this order in effect de-
termines the action and presents q Judgment,
although it would likely tend greatly to pro-
tract the litigation and embarass the appellant
in obtaining judgment. Now the order which
effects substantial right under this clause is
one which determines the action; the words
| substantial right" being Obviously qualified
and restricted by the subsequent language in
the same clause The order in this ease clear
ly does not determine the action since 1t is
not impossible for the parties to present and
take all the testimony, aud finally to Asve a
trial and adjudication OF the court upon the
merits. Consequently it cannot be maintain
ed that this order effects q substantial right
and determines the action, and here it does not
come within the class of orders referred TO in
the first subdivision OF section 10 chapter 264.
But it was further claimed that the action
was appealable under the fourth clause or sub
division Uf that section, This makes an order
appealab!e "when it it involves the merits of
an action or some part thereof" Sc. Can this
order which refers the cause to a person to
take and report to the court all the testimony
which either party might desire to give IN the
action or use on the trial, be said to involve
the merits of the action, or any part Ell Itf
We think it does.
1t must be admitted that the language here
used to determine the applicability Of an order
is susceptible of different Interpretations
The order to be appealable must involve the
merits of an action or some part OF 1t. In
placing a construction upon this provision of
the statute, of course much will depend on the
force and meaning given to the word merits
AS here used. Justice Selden of New York,
in constituting the corresponding provision OF
The Code Of that State. in st, John, 81 al, VS..
West ct al. A How; Prac. R., 629 thought
the word merits as here used, should be UNI
derstood as meaning the strict legal rights OF
She parties as contradistinguished from mere
questions of practice which every court regu-
iates for Itself, and from all matters
which depend upon the discretion or
favor of the court The order appealed from
in hat case was one denying an application to
substitute certain parties as plaintiffs, who had
deceased since the commencement OF the suit
The Judge held that the statute gave the per-
sonal representative or successors IN interest
tb4 rIoht of continuing the suit upon coming in
within q year Of the death Of the original plain
tiF. and that an appeal would lie from an or
der denying An application made for the single
purpose of comforting this right. The ap-
peal, however, was dismissed upon othef
grounds. n 100.
if WAS hsld that an order which directed a re-
ference in a case in which reference was not
authorized by law, was an appealable order,
and that a court could not be said to Rave the
mower to grant or refuse statutory hight at its
discretion In Greene, VS.. Wood, Abbotts
p. r. 277, it was held that the examination OF
3 marty before trial, as provided by the Code,
was matter of strict right, if claimed by the
adverse party, and an order refusing SUCH an
examination was appealabe.
In La Fargo vs. the La Fargo Insurance 20
II How. P. r. 26, Justice Bosworth decided
nuff q rra nat
a witness disobeying subpoena requiring him
70 produce documentary evidence material to
The party subpoenaing him, and which 1t was
his duty to prod uce, was an appsalable ORDER
\ marty he said had a right to have the RENE
dies produced by law, to secure the attendance
of material and necessary witnesses, or the
production of material and necessary evidence,
enforced in his behalf when he has been Wig
liant and done all which is incumbant on MN
10 do to obtain such attendance. AND an order
which. without fault or laehes on his part,
prevents those remedies being made ehectuai'
necessarily involved the merits and Affected a
substantial right. 10 WI.
In tba case of Kohn VS.. Gunman, IL, Wis.
p 5o9 we had occasion to consider what the
laoisIafurc intended by the language, IAN or
H. which involves the merits of an action or
..sCr,s mart thereof" That was an appeal from
49,, oder refusing to set aside summons and
conniaint for irregularity. The particular IT.
regularity complained of was that the sum-
mons. which on it's face. showed thai IL was
ias,,,d in a suit in the Co. Court Of Milwaukee
20 vas attested in the name of the Judge of
tho Circult Court We hold the order not aP-
,,aa}able. for the Ieason that it was impossible
~ sav that the mere matter Of having sum
mons properly attested Involved the merits OF
a., action A summons we thought was IN tbs
nat,re Of n notice from the plaintiff to the de-
r<,r,I.,t If the commencement of a suit, and re-
1oted rnerely to The form as providing for BRING
mo = marty into court, and therefore, "hetnef
rr0narIy attested or not, could not IN any way
involve the merits of the litigation In TINS Iat-
tar case MI. Justice Paine crlticises some OF
10 ,,ie1vs expIessed by justice Selden in st
John VS.. West, upon the proper meaning and
;r,nort of the word ''meTits," and thinks the
dafnitiop gwen by him too comprehensive
His idea is that the term merits, as USED IN
the statutes relates TO mattor OF SUBSTANCE 10
tbo law az distinguish from mere matters OF
form which 60 not affect the subject matter OF
th litigation But even within this construc-
lion # the provision of the statute, 10 Is clear
tbot the order in the present case is appeala-
HE For in the case of Brown VS.. Runas,
decided at the last term, 1t was distinctly held
that each party to a suit in equity was under
our constitution, entitled TO have his witnesses
aysmined in open Court, subject only to the
OCCASIONAL exceptions provided tor in cases at
law. The order in this case prevents the par
ties of this constitutional right by referring The
eansa to a person to lake all the testimony out
~ court which either party might desire to
nse on the trial. And if this order is to become
9neratiye-ifit is to have any force and effect
whatever. then is iC not clear. that IN these
particular cases, the parties cannot nave thelf
Witnesses examined in open court, however
much they may desire 1t. Although the CON-
sritution as inierp Ted by this Court, secures
20 patty the right to have It's Witnesses x
mined 6tf.Ie The c urt which tres 'he "a y
.rill thi, e, de- attempts TO deprive INN d me
r;ab+ and requires that all the evid nee D. "a
KEN out of court. If an order of this character
does Doe no not Involve the melits of the action
lis difficult to perceive what t., OF o,h 1,,
would Suppose in common l"% ac,. on '1 of
.onrf should deny parties lirigant the rlght, OF
,.;.,, heir Witnesses in open court, aud OF
pr opI hem on the trial in the presence of
az nv Int should it require the cause to be
/ AA