Bolton v. Donavan
| Decision Date | 09 November 1900 |
| Docket Number | 6731 |
| Citation | 84 N.W. 357,9 N.D. 575 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Walsh County; Sauter, J.
Action by Thomas Bolton against C. C. Donavan and the John Miller Company. From an order bringing in defendants, plaintiff appeals.
Spencer & Sinkler, for appellant.
H. A Libby, for respondents.
The facts embraced in this record which we regard as decisive of this appeal are briefly as follows: The action is brought to recover an alleged balance of $ 732.95, which the plaintiff alleges is due to him from the defendant C. C. Donavan on account of certain grain which the plaintiff avers was his property, and which the defendant Donavan, as plaintiff alleges, sold, and failed to account for except in part. The defendant Donavan answered the complaint and set out various matters as a defense to plaintiff's cause of action; and said defendant, in his prayer for relief, demanded that said action be dismissed as to him, and that a certain corporation, viz: the John Miller Company, of Duluth, Minn be made a party defendant herein. A motion was made in the District Court in behalf of the defendant Donavan for an order bringing said John Miller Company into the action as a party defendant. Said motion was heard upon the pleadings and certain affidavits and counter affidavits, and thereupon said court, by its order, granted the motion, and directed that all subsequent proceedings herein be had in the name of Thomas Bolton, plaintiff, against C. C. Donavan and the John Miller Company, a corporation of Duluth, Minn. The plaintiff objected to the order upon certain grounds, and excepted to the action of the court in granting the same. The objections and the exception were duly brought up on the record whereupon the plaintiff appealed from such order to this court.
In this court we are to inquire, first, whether the order is an appealable order. The order is strictly interlocutory, and it is well settled that such orders cannot be reviewed by appeal prior to the entry of judgment, in the absence of a statute granting an appeal therefrom. Upon authority the question of the appealability of this class of orders is much embarrassed by the great number of cases arising under statutes which, while they are similar to each other in many features, are often dissimilar in some particulars. Each case must, therefore, be governed by the statute under which an appeal has been taken or attempted. In this case the question presented is governed by section 5626, Rev. Codes 1899. This section embraces five paragraphs or subdivisions numbered from 1 to 5, inclusive. Subdivisions numbered 2, 3 and 5 may be dismissed from consideration, because they are obviously inapplicable to the order in question. To be appealable, therefore, the order must be classified with those enumerated or referred to in either the first or fourth subdivision of the section. It is the claim of counsel for the appellant that an appeal will lie under both of said subdivisions, but we cannot yield assent to this broad claim. We can readily understand how an order bringing into an action an additional party may greatly embarrass the plaintiff in prosecuting his action, as such an order may operate to introduce new issues and complications which are wholly foreign to the plaintiff's cause of action against the original defendant. This would be the probable result in actions at law for the recovery of money only. For this reason we concede that the order in question affected a substantial right of the plaintiff; i. e. a right to prove his case against the defendant, whom the plaintiff has sued, and as to whom alone the complaint alleges a cause of action. But under subdivision 1 of section 5626 it is not enough that an order affects a substantial right. To be appealable under subdivision 1, two other elements are made essential The order must, first, be of such a character as to "determine the action," and, second, must so operate as to "prevent a judgment from which an appeal might be taken." To our minds, it is too clear for discussion that the order in question does not fall within subdivision 1. It does not purport to determine the action, either upon the merits, or upon technical grounds, or at all; nor does the order, in our judgment, have any such practical effect upon the action. It is equally obvious that the order does not, in its terms or in its effect, so operate as to prevent the entry of a final judgment from which an appeal might be taken.
The remaining and more difficult question is whether the appeal can be upheld under subdivision 4. This subdivision grants an appeal from an order "when it involves the merits of an action, or some part thereof." We have reached the conclusion that the order is appealable under subdivision 4. The cases which we cite below from Wisconsin, Minnesota, and South Dakota in support of this view all arose under statutes identical in terms with that above quoted from subdivision 4. The crucial question in all of said cases is whether the order "involved the merits," and a solution of this question necessitated a construction of the meaning of the phrase "involves the merits.' The term "merits" as used by the profession, when applied to actions, usually denotes the subject or ground of an action as stated in the complaint, or the grounds of defense as stated in the answer; and a trial of the merits of an action generally means the elicitation of evidence in support of the averments of fact set out in the pleadings. But the courts in construing statutes governing appeals from interlocutory orders, have frequently enlarged this meaning, and have held that the phrase "involves the merits" must be so interpreted as to embrace orders which pass upon the substantial legal rights of the suitor, whether such rights do or do not relate directly to the cause of action or subject-matter in controversy. See Insurance Co. v. Morrison, 56 Wis. 133, 14 N.W. 12; Clark v. Langworthy, 12 Wis. 441 at 442; Tubbs v. Doll, 15 Wis. 640; Schaetzel v. City of Huron (S. D.) 60 N.W. 741; Railroad Co. v. Gardner, 19 Minn. 132 (Gil. 99); Bingham v. Board, 6 Minn. 136 (Gil. 82). See Rev. St. Wis. 1878, p. 799, § 3069, subd. 4; also 2 Gen. St. Minn. 1894, p. 1659, § 6140, subd. 3; also Comp. Laws Dak. § 5236, subd. 4. As to what is comprised or embraced in the phrase in question, see the reasoning of the court in St. John v. West, 4 How. Prac. 329. See, also, the following cases from New York: Chapman v. Forbes, 123 N.Y. 532, 26 N.E. 3; In re Butler, 101 N.Y. 307, 4 N.E. 518; Kain v. Delano, 11 Abb. Prac. (N. S.) 29; Platt v. Platt, 11 Abb. Prac. 110. In Insurance Co. v. Morrison the trial court, in an order to foreclose a mortgage, made an order bringing in a stranger who claimed an adverse and paramount interest in the premises, as a party defendant. This order was reviewed in the Supreme Court on appeal therefrom, and the appealability of the order was expressly placed upon the ground that it "involved the merits," and this in a case where it was ruled that rights which are senior to and adverse to the mortgage cannot be litigated in an action to foreclose except by consent. In Clark v. Langworthy the trial court held that an order refusing to make a complaint more definite was appealable, and in Mattson v. Curliss it was ruled that an order allowing a defendant to file a supplemental answer is appealable, and in Tubbs v. Doll the...
To continue reading
Request your trial