98 N.W.2d 442
Supreme Court of Wisconsin.September 8, 1959 —
October 6, 1959.
APPEAL from two orders of the circuit court for Rock county: HARRY S. Fox, Circuit Judge. Dismissed.
Action by La Verne H. Kubly and Gary Kubly, his minor son, to recover damages for personal injuries sustained in a collision between automobiles driven by the plaintiff La Verne H. Kubly and the defendant Fred Halsted.
On September 8, 1958, the defendants moved for summary judgment dismissing the complaint of the plaintiff La Verne H. Kubly against the defendants. On September 10, 1958, the court made and entered a written order denying defendants’ motion. Notice of entry of the order was served upon defendants’ counsel on October 22, 1958. On September 25, 1958, the trial court signed an order directing the plaintiffs to show cause why an order should not be entered setting aside the order of September 10, 1958, denying defendants’
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motion for summary judgment and why a new order should not be entered granting defendants summary judgment for dismissal of the cause of action of La Verne H. Kubly, plaintiff. On January 5, 1959, the trial court, by a memorandum decision in letter form, notified the attorneys for the parties that the order to show cause would be dismissed. On January 27, 1959, a formal order to that effect was signed and entered by the trial court, and notice of entry of said order was served upon counsel for the defendants on the following day. Notice of appeal by the defendants is dated January 29, 1959, and was served on February 2, 1959.
For the appellants there was a brief by Schlotthauer Jenswold of Madison, and oral argument by John F. Jenswold.
For the respondents there was a brief and oral argument by John C. Wickhem and Robert H. Consigny, both of Janesville.
BROADFOOT, J.
The defendants here attempt to appeal from the order of the circuit court for Rock county dated September 10, 1958, and the subsequent order of January 27, 1959, dismissing defendants’ motion for summary judgment.
By the provisions of sec. 274.04, Stats., the time within which an appeal may be taken from an order is limited to ninety days from the date of service of notice of the entry thereof. Notice of entry of the order of September 10, 1958, was served on counsel for the defendants on October 22, 1958. The time for an appeal from said order expired on January 22, 1959. This time is fixed by statute and the court has no power to enlarge it. The order was not vacated or set aside and stands as an appealable order from the time of service of notice of its entry. The order to show cause dated September 25, 1958, did nothing to change the effective date of the order. After receipt of the memorandum decision
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written by the trial court the defendants still had time to appeal from the original order.
The order of January 27, 1959, was a discretionary order. It does not determine the action or prevent a judgment from which an appeal may later be taken and is not an appealable order. Hogensen v. Prahl, 190 Wis. 214, 208 N.W. 867. The appeal must therefore be dismissed.
By the Court. — Appeal dismissed.