
    Flannigan, Appellant, vs. Lindgren, County Treasurer, Respondent.
    
      September 6
    
    September 27, 1904.
    
    
      Appealable order: Mandamus.
    An order In a mandamus action denying relator’s application for an order prescribing tbe questions to be tried by a jury, on tbe ground that tbe mandamus sought could not be sustained upon tbe case made by tbe pleadings, did not determine tbe action and prevent a judgment from wbicb an appeal might be taken, and is therefore not appealable under subd. 1, sec. 3069, Stats. 1898.
    Appeal from an order of the circuit court for Oconto county: S. D. Hastings, Circuit Judge.
    
      Appeal dismissed.
    
    Alternative writ of mandamus to compel action on the part of respondent, as , county treasurer of Oconto county. Return was made, to which answer was filed. Thereupon relator applied for an order “prescribing what particular questions arising in said action shall be tried'by a jury.” This application was denied by order dated March 9, 1904, on the ground stated both in the order and in the accompanying opinion, that upon the case made by the pleadings mandamus could not be sustained to enforce the act desired. Erom this order the relator appeals.
    
      Eor tbe appellant there were briefs by Glasson & Brazeau, and oral argument by D. G. Glasson.
    
    Eor tbe respondent there was a brief by Greene, Fairchild, North & Parlcer, and oral argument by B. H. Btebbins.
    
   Dodge, J.

It is entirely plain that tbe order submitted to us for review is not within tbe appealable class. It is not even claimed to fall within any except tbe first subdivision of sec. 3069, Stats. 1898:

“An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken.”

But while it may affect a substantial right, and while the views of the court expressed as a reason for the order may be conclusive of the action, this order does not determine the action, for it still pends; nor does the order prevent a judgment from which an appeal may be taken, for the logical result of the views expressed by the court would be a judgment dismissing the writ, from which, of course, this present appellant could take his appeal and review all questions which could arise upon the present order. St. Patrick’s Cong. v. Home Ins. Co. 101 Wis. 155, 16 N. W. 1125; In re M. & N. R. Co. 103 Wis. 191, 18 N. W. 753; Maynard v. Greenfield, 103 Wis. 670, 79 N. W. 407; Mills v. Conley, 110 Wis. 525, 529, 86 N. W. 203; Benolkin v. Guthrie, 111 Wis. 554, 557, 87 N. W. 466.

By the Court. — Appeal dismissed.  