Burdick v. Mann

• Decision Date: 01 July 1930
• Docket Number: No. 5787.,5787.
• Citation: 231 N.W. 545,59 N.D. 611
• Parties: BURDICK v. MANN.
• Court: North Dakota Supreme Court

59 N.D. 611

231 N.W. 545

BURDICK

v.MANN.

No. 5787.

Supreme Court of North Dakota.

July 1, 1930.

Syllabus by the Court.

An order denying a motion to vacate an order advancing a case upon the calendar is not appealable.

Syllabus by the Court.

An order overruling a special appearance and objection to jurisdiction does not involve the merits of an action or some part thereof so as to render the same appealable under section 7841, C. L. 1913.

Syllabus by the Court.

An order denying a motion for dismissal and abatement of an action does not involve the merits of an action or some part thereof so as to render the same appealable under said section 7841.

Syllabus by the Court.

An order denying a motion for continuance is not an appealable order under said section 7841.

Syllabus by the Court.

Nonappealable orders may be reviewed upon an appeal from the judgment where such orders and the facts essential to their review are embodied in a settled statement of case, which is made part of the record on appeal.

Appeal from District Court, Burleigh County; Grimson and Lowe, Judges.

Action by U. L. Burdick against Beatrice Mann. From an order denying a motion to vacate an order vacating the cause upon the calendar, from an order overruling a special appearance and objections to jurisdiction, from an order denying a motion to abate and dismiss the action, and from an order denying the motion for a continuance, defendant appeals.

Appeal dismissed.

F. O. Hellstrom, of Bismarck, for appellant.

Wm. Langer, of Bismarck, for respondent.

PER CURIAM.

Plaintiff brought this action to recover for certain services, which he alleges in his complaint that he rendered for the defendant as an attorney at law. The action was originally brought in the district court of Cass county, but on August 26, 1929, it was transferred to the district court of Burleigh county. The case was noticed for trial and appeared upon the December, 1929, term of said court as one of the causes for trial at such term. On December 21, 1929, plaintiff moved that the case be advanced on the calendar. On December 29, 1929, the presiding judge, Hon. R. G. McFarland, entered an order directing that the said December term be reconvened on January 3, 1930, at 10 o'clock a. m. on that day; and further directed that the above-entitled action be placed upon the peremptory civil calendar for trial as the second jury case upon such calendar. Thereafter the said Hon. R. G. McFarland duly requested Hon. G. Grimson, one of the judges of the Second judicial district, to sit in place of Judge McFarland as judge upon the trial of the said cause. Upon the case being called for trial by Judge Grimson on January 3, 1930, the defendant appeared specially by her attorney F. O. Hellstrom, and, so appearing, made objection to the jurisdiction of the court. The objection assailed the legality and validity of the order entered by Judge McFarland on December 29, 1929, reconvening the court on January 3, 1930, and setting the above-entitled action for trial upon the peremptory civil calendar as the second jury case. Judge Grimson entered an order overruling the special appearance and objections to jurisdiction. Thereupon the defendant filed an affidavit of prejudice against Judge Grimson, and such proceedings were had conformably to law that the Hon. John C. Lowe, one of the judges of the Fifth judicial district, was called in to sit in the place of Judge Grimson as trial judge. When the case was called for trial by Judge Lowe on January 4, 1930, the defendant appeared by her said attorney and moved that the order that had been entered by Judge McFarland on December 29, 1929, be vacated and set aside. The motion was denied. The defendant then moved that the action be “abated” and dismissed. The motion was denied. The defendant thereupon moved the said court that the cause be continued over the term. This motion was also denied. The defendant has appealed to this court from the said last-mentioned four orders, to wit, from the order entered by Judge Grimson on January 3, 1930, overruling the defendant's special appearance and objection to jurisdiction; from the order entered by Judge Lowe on January 4, 1930, denying defendant's motion to vacate and set aside the order entered by Judge McFarland on December 29, 1929; from the order entered by Judge Lowe on January 4, 1930, overruling defendant's motion for a dismissal and abatement of the above action; and, from the order entered by Judge Lowe on January 4, 1930, denying defendant's motion for a continuance.

At the threshold of the case we are confronted with the question whether any of the four orders sought to be reviewed is appealable. It is elementary that the right to appeal from an interlocutory order is purely a statutory one. Ellingson v. Northwestern Jobbers Credit Bureau, 58 N. D. 754, 227 N. W. 360. The statutes of this state provide that an appeal lies to the Supreme Court from the following orders.

“1. An order affecting a substantial right made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken.

2. A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment.

3. When an order grants, refuses, continues or modifies a provisional remedy, or grants, refuses, modifies or dissolves an injunction or refuses to modify or dissolve an injunction, whether such injunction was issued in an action or special proceeding or pursuant to the provisions of section 8074 of this code; when it sets aside or dismisses a writ of attachment for irregularity; when it grants or refuses a new trial or when it sustains or overrules a demurrer.

4. When it involves the merits of an action or some part thereof; when it orders judgment on application therefor on account of the frivolousness of a demurrer, answer or reply on account of the frivolousness thereof.

5. Orders made by the district court or judge thereof without notice are not appealable; but orders made by the district court after a hearing is had upon notice which vacate or refuse to set aside orders previously made without notice may be appealed to the supreme court when by the provisions of this chapter an appeal might have been taken from such order so made without notice, had the same been made upon notice.” Section 7841, C. L. 1913.

Appellant contends that the orders sought to be reviewed here involve the merits of an action or some part thereof, and, hence, fall within subdivision 4, section 7841, supra. A careful consideration of the question leads us to the conclusion that the contention thus advanced is not well founded. The meaning of the phrase “involves the merits of an action or some part thereof,” in statutes relating to appeals from interlocutory orders, has been considered by many courts and legal writers; it has also been considered by this court in many cases. It is not always easy to determine whether a given order falls within the provisions of such statutes. Ellingson v. Northwestern Jobbers Credit Bureau, 58 N. D. 754, 227 N. W. 360.

In Bolton v. Donavan, 9 N. D. 575, 84 N. W. 357, 358, this court said: “The term ‘merits,’ as used by the profession, when applied to actions, usually denotes the subject or grounds of an action as stated in the complaint, or the grounds of the 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.”

The Encyclopedia of Pleading and Practice (2 Ency. Pl. & Pr. 75) says: “Where statutes allow an appeal from...