Beresina Sch. Dist. No. 23 v. Steinwandt

• Decision Date: 18 February 1931
• Docket Number: No. 5894.,5894.
• Citation: 60 N.D. 458,235 N.W. 348
• Parties: BERESINA SCHOOL DIST. NO. 23 v. STEINWANDT.
• Court: North Dakota Supreme Court

60 N.D. 458

235 N.W. 348

BERESINA SCHOOL DIST. NO. 23

v.STEINWANDT.

No. 5894.

Supreme Court of North Dakota.

Feb. 18, 1931.

Syllabus by the Court.

No appeal lies from the ruling of the district court in denying a motion to dismiss an appeal from the justice court, even if such ruling be considered an order denying the motion to dismiss.

Appeal from District Court, McIntosh County; George M. McKenna, Judge.

Action by Beresina School District No. 23, against Jacob Steinwandt. From an order of the district court denying plaintiff's motion to dismiss appeal from police magistrate's court, plaintiff appeals.

Appeal dismissed.

Franz Shubeck, of Ashley, for appellant.

Wishek & Wishek, of Ashley, and Jacobsen & Murray, of Mott, for respondent.

BURR, J.

This action was commenced in justice court, and, upon demand for change of venue, was transferred to the police magistrate's court. Here the defendant demurred to the jurisdiction of the police magistrate, and, when the demurrer was overruled, he withdrew from the case. Judgment was entered in favor of the plaintiff, and the defendant appealed to the district court. The notice of appeal states that the appeal was taken “on questions of law and fact”; the particular point of law involved being the validity of the demurrer interposed. However, the appellant included in the notice of appeal this statement: “You are further expressly notified that should the defendant be ruled against on the above point of law, he desires and hereby requests a new trial in the District Court, upon all the issues of law and fact involved in the said action.” No answer was served with the notice of appeal.

The questions involved in the demurrer were argued in the district court and decided against the defendant. The plaintiff then moved to dismiss the appeal “on the ground and for the reason that said appeal has never been perfected by reason of the failure to serve any pleadings in said action,” thus challenging the jurisdiction of the court. The court denied the motion and again overruled the demurrer, saying: “We will overrule the demurrer to the complaint and permit the defendant to file his answer.” Plaintiff excepted to the ruling of the court in “not allowing the motion to dismiss,” and, on plaintiff's statement that it wanted to test the validity of the court's ruling, the case was continued and apparently is still pending.

The plaintiff then appealed to this court from what is called the “order” of the district court in denying the motion to dismiss. The only “order”...