Same v. Same

*326 By the Court, Whiton, C. J.

This is a motion to set aside an order made in the supreme court on the 26th day of December, A. D. 1851; and all the orders and decrees made in the supreme court subsequently to the entering of the order on the 26th of December. The order made on the 26th day of December, 1851, was a denial of a motion [made by Hun-gerford the appellee to dismiss the appeal then pending.]

The reason urged upon the court in support of this motion is, that the decision of the supreme court in question was erroneous, and that it had not at the time jurisdiction of the case, and of course could not make any valid order in relation to it, except one dismissing it. Hence, it is contended, that not only is the order denying the motion to dismiss erroneous, but all subsequent orders and decrees made in the case are void; that the court had not jurisdiction of the case at the time it made the order denying the motion to dismiss, is proved, as the moving party now claims, by the decision of this court in the case of [ Williams] vs. [Field, 2 Wis., 421] decided at the last term of this court. In that case we held that a decree which reserved the question of costs was, under our statute, an interlocutory, and not a final decree, although it disposed of all the principal matters in controversy between the parties. Hence we held that such an order could not be appealed from, after fifteen days, that being the time limited by the statute for taking appeals from interlocutory orders. As the decree which was before the court on the 26th of December, 1851, also reserved the question of costs, and was not appealed from until more than fifteen days had elapsed from the signing; the moving party now contends that the court had not jurisdiction of the case, and that the order denying the motion to dismiss the appeal should be vacated; and all orders subsequently made in the case.

We don’t see how the motion can be sustained. The decis *327 ion in question was made by the highest court in the State; and although this court as at present constituted might be of opinion that an error was committed by the supreme court as it then existed; yet we cannot undertake to reverse, annul and vacate the decision which it made, even for the want of jurisdiction. The court was competent to decide all the questions pertaining to the case, which came before it — that of its own jurisdiction included; and its decision must be final. Were we to take jurisdiction of this question and entertain this motion, we do not see how we could refuse to entertain similar motions in every case that has been decided by the supreme court. It can make no difference that the alleged error of the court was committed in deciding that they had jusisdiction of the case, when in fact they had not; because the decision of the court upon that subject is as final and conclusive as upon any other.

Note. — The opinion above given was found among the papers of the late. Chief Justice Whiton after his death, and placed on the files of the court, May 37, 1859. There are several inaccuracies and omissions, which are supplied in brackets. — Reportee.

The motion is denied with costs.