
    Kubly and another, Respondents, v. Halsted and another, Appellants.
    
      September 8
    
    October 6, 1959.
    
    
      For the appellants there was a brief by Schlotthauer & Jenswold of Madison, and oral argument by John F. Jens-wold.
    
    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 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.  