
    FIRST NATIONAL BANK OF FREDERIC, WISCONSIN, Appellant, v. McILVAINE, Respondent.
    (139 N. W. 596.)
    Appeal — Dismissal of Action — Dismissal of Appeal — Appeal From Order Directing Dismissal of Action — Substantial Right.
    Plaintiff in the-present action recovered judgment, and proceedings therein, except entry' of judgment, were stayed for sixty days, within which time plaintiff brought a second action against defendant' and another to subject certain realty to /payment .of said judgment, and,» on defendant’s motion in the first action, the court directed plaintiff to dismiss its second action, and, upon its refusal to do so, made an order on defendant’s motion, dismissing the second action. Plaintiff appealed from the order of dismissal, and also from the order directing it to dismiss. Held, that the appeal from the latter order involved no substantial right. An appeal being .pending from the- order in the second' action, dismissing same, the ruling in the present action, directing plaintiff to dismiss its second action, no longer affects any substantial right of either party.
    (Opinion filed January 6, 1913.)
    Appeal from Circuit Court, Beadle County. Hon. Alva E. Taylor, Judge.
    Action by the First National Bank of Frederic, Wisconsin, against C. N. Mcllvaine. From an order in the present action directing- plaintiff to dismiss a second action brought 'by -him against the same defendant and another, plaintiff appeals.
    Upon respondents' motion, said appeal is dismissed; there being pending an appeal by plaintiff from /an order, made in the second action, dismissing the latter action.
    
      A. W. Wilmwth, for Appellant,
    The first assignment of error raises the question as to whether the court erred in its order of July 17, 1912, in the case of First National Bank of Frederic v. C. N. Mcllvaine directing the plaintiffs to file with the court a formal application to' dismiss the action of First National Bank'of Frederic v. C. N. Mcllaine and SaraT. Mcllvaine and- in the event that plaintiffs or their attorneys failed or neglected so to do said action -would without further notice on motion of defendant’s attorneys be dismissed, on the ground that they are separate and distinct actions.
    The court in making this- order evidently considered that the action of Bank v. C. N. Mcllvaine and Sara T. Mcllvaine was a violation of the stay order of the court -dated May 27, 1912, in the case -of Bank v. C. N. Mcllvaine. Said stay order is worded as follows: “Ordered, that a stay of all proceedings in this action, except the "entry of judgment and taxation of costs "be had for a period of 60 days from this date,-.” Therefore under this stay order the action of Bank y. C. N. Mcllvaine and Sara T. Mcllvaine is not a violation of the -stay order unless' it'is a proceeding in the action of.Bank v. C. N. Mcllvaine.
    The action of Bank v. C. N. Mcllvaine and Sara T. Moilvaine is not !tbe same action as- that of Bank v. C. N. Mcllvaine. The test ,by which it is- usually, determined whether two. actions are identical is (1) -are the parties the. same, and (2) is the relief asked the same." -Applying these tests we find -that in the action of Bank ys. C. N. Mcllvaine and Sara T" Mcllvaine there is a defendant Sara- T. Mcllvaine who was not a party to the action of Bank vs. C. N. Mellvaine and who was not even bound by the judgment in that case. Concerning the relief asked in the two cases, we find that the action- of Bank vs. C. N. Mellvaine, was one brought 'to recover the -amount due on two promissory notes, while the action of Bank vs. C. N. Mellvaine and Sara -T. Mcll-Vaine was an action brought to declare the defendant Sara T. Mellvaine a trustee of -the property of C. N. M-cIlvaine standing in her name and to -compel her to reconvey the said- property to defendant, C. N. Mellvaine. Therefore the action of Bank v. C. N. Mcllv-aine and 'Sara T. Mellvaine, involving a different party and asking different relief -cannot be a proceeding in -the action of Bank vs. C. N. Mellvaine and is not a violation of the stay order in that case.
    If, then, the -action of Bank v. C. N. M-cIlvaine -and Sara T. Mellvaine was a different action from that’of Bank v. C. N. Mcllvaine, it must be governed and can only be -disposed of in the manner provided for in Chapter 12 of the Code of Civil Procedure, and the court had no power to make an order in the case of Bank v. C. N. Mellvaine directing plaintiff to dismiss the action of Bank v. C. N. Mellvaine and Sara T. M-cIlvaine. If defendants were of the opinion that the action of Bank v. C. N." Mellvaine and Sara T. Mellvaine was not maintainable, they should -have taken the course" prescribed by the Code of Civil Procedure and either demurred or -answered the complaint in said action. Sec. 120 Code Civil Procedure.
    For further points and authorities -on behalf of -appellant see Bank v. Mellvaine, et al., infra.
    No brief was filed on behalf of Respondent. See, brief' of Respondent in Bank v. Mellvaine, et al., infra, page
   HANEY, J.

On May 27, 1912, the plaintiff ■ recovered a judgment in this action against the' defendant for $2,599.24 and costs. All proceedings, except the -entry of judgment and taxation of -costs w-er-e stayed for 60 -days. Subsequently the plaintiff brought an action against the defendant and -Sara T. Mellvaine to have certain real property, the record title of which is in Sara T. Mellvaine, -subjected to the payment of th-e aforesaid judgment. Thereafter the defendant moved the court in this- -action for an order requiring the-plaintiff to- withdraw i-t-s-second a-ction on the ground that it was instituted in violation of -the order staying proceedings in (this action. Upon the hearing of this motion, the court entered an order directing .the plaintiff Ito make a formal application to dismiss- its 'second -action and- discharge the lis- pendens filed therein within -two days, and providing -that, if the plaintiff failed to comply with such direction, «the court would, upon defendant’s motion., enter an order -dismissing such action and .-discharging the lis pendens. Plaintiff having- declined to withdraw its second action, -the defendant moved to dismiss, which motion was granted, and tire plaintiff -appealed. It also appealed from the -order made in -this, th-e firs-t action, directing it to dismiss' the second one. The defendant now moves to- dismiss such ap-peal for the reason that it involves no substantial right. .Such motion should be granted. ■ ■

The -order entered in this action, relating to the dismissal of the second action, in effect merely informed the parties that the •court would -sustain a.motion -to dismiss in -the second action. It, in effect, denied the relief 'sought by the defendant. An -order ■having 'been entered in -the -second- action dismissing th-e same, from which the plaintiff appealed, the ruling sought to be -reviewed by the plaintiff’s appeal in this action no longer affects any substantial right -of either party. The only material issue is whether the second action should have been dismissed; -such issue is presented-by the appeal in the second action. Neither -the reversal nor affirmance of the -order appealed from in this action could possibly affect the right of -the plaintiff to maintain its second -action.

Th-e plaintiff’s -appeal in this action is- dismissed.  