
    McLeod vs. Bertschy.
    
      Practice — Appeal from order refusing to strike came from the calendar.
    
    1: An order refusing to strike a cause from the calendar, when in effect merely a refusal to continue the cause until the next term, is not ap-pealable.
    2. But when the question determined by it is, whether there is an action between the parties pending in the court, such order affects the merits, and is appealable.
    3. Thus, where a cause was pending upon complaint, answer with counterclaims, and reply, and plaintiff entered an order, as of course, for a discontinuance, but defendant noticed the cause for trial and had it put upon the calendar, a refusal to strike it from the calendar, on plaintiff’s motion, is appealable.
    APPEAL from the County Court of Milwaukee County.
    Motion to dismiss an appeal from an order denying a motion to strike the cause from the calendar.
    
      E. Mariner, for appellant.
    
      Jenkins & Elliott, contra.
    
   Lyow, J.

This is a motion to dismiss an appeal from an order denying a motion to strike the cause from the calendar. The action being at issue in the County Court upon the answer to the complaint, and upon the reply to certain counter-claims contained in the answer, the attorney for the plaintiff entered an order, of course, with the clerk of such court, discontinuing the action upon payment of the defendant’s taxable costs therein, notified the plaintiff’s attorneys of the entry of sncb order, and offered to pay sncb costs npon presentation of the taxed bill thereof, and further offered to appear before a taxing officer without formal notice, for the purpose of procuring an adjustment of the costs. Tbe attorney for the defendant promptly denied the right of the plaintiff to dismiss bis action without leave of court, and notified bis attorney that they should disregard such attempted discontinuance thereof, and thereupon they noticed the cause for trial, and caused it to be placed on the calendar for trial, at the next term of the court. A motion was then made on behalf of the plaintiff to strike the cause from the calendar, “ for the reason,” as stated in the motion, “that the said action is not now depending in this court, but has been discontinued, and is not properly upon the calendar.” Tbe court denied the motion, and from the order denying the motion the plaintiff has appealed to this court. It is stated in the order of the court that the motion was denied, “ for the reason that said cause is still depending in this court, has not been legally discontinued, and is properly upon the calendar for trial.”

Tbe only question presented by this motion-is, whether tbe order of tbe County Court denying tbe plaintiff’s motion to strike tbe cause from tbe calendar, is an appealable order.

Tbe usual office of such a motion is merely to obtain a decision and ruling as to whether tbe action shall be tried at tbe term at which tbe motion is made, or at a subsequent term. In such case tbe order granting or denying tbe motion amounts to nothing more than tbe ruling of tbe court upon an application for a continuance, and is not appealable. It is a mere matter of practice or procedure, and does not affect tbe merits of tbe action-

13ut the order under consideration has a far deeper significance. It is a ruling by the court that the plaintiff has an action pending therein and must try it and abide the result of the trial, while the plaintiff protests that be is not a suitor in the court at all, tbat be bas no action depending in it. It would be strange, indeed, if an order wbicb involves the question of the very existence of the action, does not involve the merits of the action. If the order is properly made, the parties are in court, and must abide the judgment of the court, whether it be adverse to one or the other of them. If the order is erroneous, it is because both parties are out of court, and relieved from liability on account of the action. It scarcely seems to require argument to show tbat an order wbicb operates so vitally upon the action, does involve the merits thereof, and is therefore appealable — Taylor’s Statutes, 1635, § 11.

By the Court — Motion denied.  