
    Mechanical Appliance Company, Appellant, vs. A. Kieckhefer Elevator Company, Respondent.
    
      June 13, 1916.
    
    
      Appealable orders.
    
    An order of the circuit court reversing a judgment of the civil court of Milwaukee county and ordering a new trial in the circuit court “grants a new trial” and hence is appealable under sub. (3), sec. 3069, Stats. 1915. The proviso in said sub. (3) that no order shall be considered appealable which simply reverses or affirms “an order of the civil court,” is not applicable.
    Appeal from an order of tbe circuit court for Milwaukee county: E. C. Eschweilee, Circuit Judge.
    
      Motion to dismiss denied.
    
    Tbe respondent moved to dismiss tbe appeal.
    Eor tbe respondent, in support of tbe motion, there was a brief by Doe, BalThorn & Doe, and oral argument by Harold M. Wilkie.
    
    Eor tbe appellant there was a brief by Robert R. Freeman, and oral argument by Timothy Brown.
    
   Pee Cueiam.

In this action, commenced in tbe Milwaukee county civil court, judgment was rendered in that court for tbe plaintiff, and tbe defendant appealed therefrom to tbe circuit court, where tbe judgment was reversed and a new trial ordered. Tbe plaintiff has appealed to this court from this order, and tbe respondent now moves to dismiss tbe appeal on tbe ground that tbe order is not appealable.

Tbe motion must be denied. It. was held in Pabst B. Co. v. Milwaukee L. Co. 156 Wis. 615, 146 N. W. 879, that an order of the circuit court reversing a judgment of tbe civil court and ordering a retrial of tbe case in tbe circuit court “grants a new trial” and hence is appealable under tbe express language of sub. (3), sec. 3069, Stats., enumerating certain classes of appealable orders. That decision covers this case unless there has been a material change in the statute, and really that is the question to be determined on this motion. By ch. 219 of the Laws of 1915 a clause was added to the subdivision cited providing (with some exceptions not material here) that an order which simply reverses or affirms an order of the civil court should not be considered appeal-able. It seems clear that this proviso does not apply to this case. The word “order” is used in all parts of the section technically and intentionally as meaning a direction of the court not included in a judgment. The order which is appealed from here did not simply reverse or affirm an “order” of the civil court, but reversed a “judgment” of the civil court and ordered a new trial. The court cannot extend the proviso to cover cases which its plain language does not reach.

The final sentence of the opinion in the case of Witt v. Voigt, 162 Wis. 568, 156 N. W. 954, is construed as an intimation that the proviso in question applies to a case like the present. The point was not before the court, however, in that case, and we are satisfied that the proviso does not apply.

By the Court. — Motion denied, without costs.  