
    Elizabeth A. Ryder and James Ryder, Plaintiffs-Respondents, v. Society Insurance, a mutual company, f/k/a Threshermen's Mutual Insurance, Brady P. Hoolihan, and Ellen M. Kado, Defendants-Appellants.
    Court of Appeals
    
      No. 97-0048.
    
      Submitted on a motion January 27, 1997.
    
    Decided May 6, 1997.
    
    (Also reported in 565 N.W.2d 277.)
    
      For the defendants-appellants a motion was submitted by Larry Schifano of Thrasher, Doyle, Pelish & Franti, Ltd. of Rice Lake.
    For the plaintiffs-respondents a response was submitted by Michael P. Wagner of Wagner & Todryk, S.C. of Menomonie.
    Before Cane, P.J., LaRocque and Myse, JJ.
   PER CURIAM.

Society Insurance, Brady Hoolihan and Ellen Kado appeal a pretrial order awarding costs and attorney's fees to Elizabeth and James Ryder. The trial court ruled that appellants' motion to dismiss the Ryders' lawsuit was frivolous and warranted costs and attorney's fees under § 814.025, STATS. The Ryders now move to dismiss the appeal on the ground that the trial court's pretrial order is not final and thereby not appealable as of right under § 808.03(1), Stats. In response, appellants argue that the trial court's pretrial order was a final order resolving a special proceeding initiated by the Ryders' trial court motion for costs and attorney's fees. Among other things, appellants rely on this court's dicta in Kelly v. Clark, 192 Wis. 2d 633, 653, 531 N.W.2d 455, 461 (Ct. App. 1995), suggesting that motions under § 814.025, Stats., initiate special proceedings. We conclude that the trial court's order did not concern a special proceeding, and we therefore order the appeal dismissed.

We conclude that the trial court's order was not a final order in a special proceeding within the meaning of § 808.03(1), Stats. Historically, special proceedings included only those proceedings that were not an action at law or a suit in equity under traditional common law or equity practice. See Black's Law Dictionary 1084 (5th ed. 1979); see also State ex rel. Ashley v. Circuit Court, 219 Wis. 38, 43, 261 N.W. 737, 739 (1935). Special proceedings included all remedies that were not ordinary actions. See Black's Law Dictionary 1431 (3d ed. 1933). Special proceedings did not include matters that were incident to an existing action. See Black's Law Dictionary 1084 (5th ed. 1979); see also Voss v. Stoll, 141 Wis 267, 271, 124 N.W. 89, 91 (1910). Under common law and equity practice, motions for costs and attorney's fees were incident to the pending action. See Black's Law Dictionary 446-47 (3d ed. 1933). As such, the Ryders' pretrial motion for costs did not constitute a special proceeding; it was only an ordinary intermediate nonfinal matter incident to an ongoing action. See State v. Wisconsin Telephone Co., 134 Wis. 335, 341, 113 N.W. 944, 946 (1908); see also Voss, 141 Wis. at 271, 124 N.W. at 91. Consequently, the trial court's order resolving the motion was not appealable as of right.

Our remarks in Kelly, 192 Wis. 2d at 653, 531 N.W.2d at 461, do not require a different result. Kelly's discussion of special proceedings is noncontrolling dicta; it was not directly germane to the issues in the case or to the question of appellate jurisdiction. In Kelly, we observed that a motion for costs and attorney's fees initiated a special proceeding. Id. Our observation rested on the premise that a motion could initiate a special proceeding, citing Wengerd v. Rinehart, 114 Wis. 2d 575, 582, 338 N.W.2d 861, 866 (Ct. App. 1983). Our observation in Kelly is not controlling for two reasons. First, we made this observation as an incidental matter before we concluded that trial courts may not resolve disputed facts by affidavits on the question of frivolousness. Our observations about special proceedings had no bearing on the disputed fact, affidavit issue. Second, our observations rested on the premise that motions sometimes initiate special proceedings. We did not attempt to classify, however, what motions would initiate special proceedings and what motions would not, with regard to the issue of appellate jurisdiction. Viewed in this light, our Kelly observations will not support Society's appeal.

We also reject Society's attempt to apply the holding of State v. Wickstrom, 134 Wis. 2d 158, 396 N.W.2d 188 (1986), to this appeal. The Wickstrom court held that a pretrial bail forfeiture proceeding was civil in nature and therefore not strictly part of the underlying criminal case. Id. at 161-64, 396 N.W.2d at 190-91. On that basis, the Wickstrom court ruled that criminal defendants must appeal pretrial bail forfeiture proceedings within 120 days of the trial court's pretrial order; they could not raise such matters in an appeal of the subsequent conviction. Id. In essence, the Wickstrom court held that the inherent civil nature of bail forfeiture proceedings made them separate from their underlying criminal proceedings, in part from the fact that bail forfeiture proceedings were historically handled separately. Id. at 163, 396 N.W.2d at 191. Here, comparable conditions do not exist. Pretrial costs have always been incident to the underlying lawsuit, unlike civil bail forfeiture matters in criminal proceedings. Consequently, pretrial cost orders remain nonfinal orders in the underlying lawsuit, not separately appealable special proceedings. Last, the Ryders' motion for frivolous appeal costs and attorney's fees is denied; Society could have rationally believed from our Kelly observations that the trial court's order was appealable.

By the Court. — Appeal dismissed.  