Opinion
December 4, 1956 —
January 7, 1957.
APPEALS from orders of the circuit court for Milwaukee county: ROBERT C. CANNON, Circuit judge. Dismissed.
For the appellants there was a brief by Bendinger, Hayes Kluwin of Milwaukee, and oral argument by John A. Kluwin.
For the respondents there was a brief by Bitker Marshall, attorneys, and Gerald J. Kahn of counsel, all of Milwaukee, and oral argument by Mr. Kahn.
These were separate actions by a wife and her husband for injuries sustained by the wife when she slipped on the ice on the steps of an apartment house owned by defendants. The actions were considered together throughout. On December 11, 1953, the circuit court made orders sustaining demurrers to the amended complaints and granting leave to the plaintiff s to serve amended complaints within twenty days after service of notice of entry of order and on payment of $10 costs. Notice of entry of the orders was served on December 31, 1953. On February 5, 1954, amended complaints not having been served nor the costs paid, the court ordered that judgment be entered for the defendants. Such judgments were entered on February 11, 1954, and notice of entry thereof was served on February 15, 1954.
On February 19, 1954, plaintiffs served notice of appeal from the orders of December 28, 1953, sustaining the demurrers. Thereafter this court affirmed those orders. ( Cross v. Leuenberger, 267 Wis. 232, 65 N.W.2d 35, 66 N.W.2d 168.) On motion for rehearing, which was denied, this court modified its mandate to read as follows (p. 238b):
"Orders modified so as to grant to the plaintiffs the privilege of serving amended complaints within a period of twenty days from the remittitur of the record from this court to the circuit court, and as so modified, the orders are affirmed."
Pursuant to the amended mandate, the circuit court vacated the judgments of February 11, 1954. Defendants appeal from the orders vacating the judgments.
The appeals must be dismissed, because the orders appealed from are not appealable. An order vacating a judgment entered on default of either party does not determine the action and prevent a judgment from which an appeal might be taken, within sub. (1) of sec. 274.33, Stats., nor is it a final order within sub. (2) of that section; and obviously it does not fall under sub. (3) or (4). Therefore it is not appealable. McKey v. Egeland, 222 Wis. 490, 491, 269 N.W. 245; Old Port Brewing Corp. v. C. W. Fischer F. Co. 228 Wis. 62, 66, 279 N.W. 613; Kelm v. Kelm, 204 Wis. 301, 235 N.W. 787. The orders here appealed from are within that rule, plaintiffs having defaulted by failing to serve amended complaints or pay the motion costs within the period fixed therefor by the orders sustaining demurrers to the original complaints.
It is also established that where a judgment is entered in the trial court in accordance with the mandate of this court, an appeal from that judgment will be dismissed. Tomberlin v. Chicago, St. P., M. O. R. Co. 211 Wis. 144, 147, 246 N.W. 571, 248 N.W. 121. The same principle applies where the judicial act appealed from is an order rather than a judgment. The orders here in question fall within that rule, because the trial court had to vacate the judgments in order to carry out properly the mandate to permit plaintiffs to serve amended complaints.
The orders complained of not being appealable, we are not required to pass upon the contention of the defendants that this court's mandate on the former appeal was ineffectual on jurisdictional grounds because the orders reviewed on that appeal were not appealable. Early decisions appear, however, to settle the point that the propriety of such mandate is beyond successful challenge in later stages of the litigation. State v. Waupaca County Bank, 20 Wis. *640, *642; Hungerford v. Cushing, 8 Wis. *324, *327.
By the Court. — Appeals dismissed.