Chapman v. Dorsey

• Decision Date: 17 February 1950
• Docket Number: Nos. 35126,35119,s. 35126
• Citation: 41 N.W.2d 438,16 A.L.R.2d 1015,230 Minn. 279
• Parties: , 16 A.L.R.2d 1015 CHAPMAN v. DORSEY.
• Court: Minnesota Supreme Court

Page 438

41 N.W.2d 438

230 Minn. 279, 16 A.L.R.2d 1015

CHAPMAN v. DORSEY.

Nos. 35126, 35119.

Supreme Court of Minnesota.

Feb. 17, 1950.

Syllabus by the Court.

1. The statutory phrase 'a special proceeding' is a generic term for any civil remedy in a court of justice which is not of itself an ordinary action and which, if incidental to an ordinary action, independently of the progress and course of procedure in such action, terminates in an order which, To be appealable pursuant to M.S.A. § 605.09(7), must adjudicate a substantial right with decisive finality separate and apart from any final judgment entered or to be entered in such action upon the merits.

2. An order either granting or denying a motion for the joinder of additional parties defendant or plaintiff in a personal injury action is made in, and is an integral part of, an ordinary action and does not involve 'a special proceeding,' which, separate and apart from the progress and course of such action, adjudicates by final order a substantial right separate and distinct from any judgment entered upon the merits after all issues have been litigated.

3. An order is not appealable under § 605.09(3) unless in effect it finally determines the action Or finally determines some positive legal right of the appellant relating thereto.

4. Judicial discretion is the sound choosing by the court, subject to the guidance of the law, between doing or not doing a thing, the doing of which cannot be demanded as an absolute right of the party who asks that it be done.

5. Pursuant to § 540.16, as amended by L. 1947, c. 152, an order denying a motion to bring in additional parties is not appealable, in that it does not involve the merits of the action or some part thereof.

6. As a general rule, a motion to vacate a nonappealable order can only cure an appealability defect which arises from an ex parte birth and not those which are otherwise inherent therein.

7. The rule of nonappealability applies to orders which deny or grant motions for the vacation of an order either denying or granting the joinder of additional parties to an action. Decisions to the contrary are expressly overruled.

8. A writ of certiorari does not lie to review an order denying a motion for the joinder of additional parties, in that such order is intermediate in its nature, is decisive of no issue upon the merits or of any part thereof, and is subject to review upon an appeal from a final judgment on the merits.

Leslie C. Scholle, Minneapolis, Robert J. Phillips, Little Falls, Bruce K. Newell, Minneapolis, for appellant and relator.

Ryan, Ryan, Ryan & Ebert, Brainerd, for respondent.

MATSON, Justice.

Defendant, by means of both appeal and writ of certiorari, seeks a review of an order of the trial court denying his motion for the joinder of additional parties defendant pursuant to M.S.A. § 540.16. Plaintiff's motion to dismiss the appeal and quash the writ presents the following issues:

(1) Is an order denying a motion--made pursuant to § 540.16, as amended by L. 1947, c. 152,--to bring in additional parties defendant, appealable?

(2) If such order is not appealable, may it be reviewed upon writ of certiorari?

Plaintiff, a minor, by her father and natural guardian, brought this action to recover damages for injuries sustained in an automobile collision. The complaint alleges that plaintiff was a passenger in a car owned by Howard Chapman and driven by Marcelline Chapman and that defendant through the negligent operation of his vehicle caused the accident. Defendant answered denying his negligence. He also moved to join as additional parties defendant Marcelline and Howard Chapman pursuant to § 540.16. Defendant's affidavit in support of his motion alleged that the collision was caused by the negligence of Marcelline and Howard Chapman; that, in a prior suit involving both Howard and Marcelline Chapman as plaintiffs and the present defendant as defendant, a jury found for this defendant, but assessed no damages on his counterclaim; that in the present action it is now necessary to bring in the Chapmans as additional parties defendant in order to have a full determination of the action and in order to avoid a multiplicity of suits.

Insofar as here pertinent, § 540.16, as amended by L.1947, c. 152, provides: 'Subdivision 1. When it shall be made to appear, upon motion of [DELETED: the plaintiff] [ADDED: a party to] [DELETED: in] any pending action, [DELETED: or of any defendant in such action who has alleged a counterclaim or other ground for affirmative relief,] that in order to a full determination of such action, [ADDED: or in order to avoid a multiplicity of suits,] another should have been made a party defendant or plaintiff therein, the court, upon such terms as may be proper, shall order such additional party to be brought in, and may stay other proceedings in the action for such time as may be necessary for that purpose.' (Words deleted indicate language superseded, and italics new language supplied, by the 1947 amendment.)

Defendant contends that an order denying a motion, made pursuant to § 540.16 to join additional parties defendant, is appealable under § 605.09(3 and 7), which provide:

'An appeal may be taken to the supreme court by the aggrieved party in the following cases:

'(3) From an order involving the merits of the action or some part thereof;

'(7) From a final order, affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment.' (Italics supplied.)

1-2. Defendant is in error insofar as he rests his case for appealability on the theory that the order denying his motion is a final order, affecting a substantial right, made in A special proceeding pursuant to § 605.09(7). No special proceeding is involved. The statutory phrase 'a special proceeding' is a generic term for any civil remedy in a court of justice which is not of itself an ordinary action and which, if incidental to an ordinary action, independently of the progress and course of procedure in such action, terminates in an order which, To be appealable pursuant to § 605.09(7), must adjudicate a substantial right with decisive finality separate and apart from any final judgment entered or to be entered in such action upon the merits. Bennett v. Whitcomb, 25 Minn. 148; In re Grundysen, 53 Minn. 346, 55 N.W. 557; Schuster v. Schuster, 84 Minn. 403, 87 N.W. 1014; Anderson v. Langula, 180 Minn. 250, 230 N.W. 645; see, 39 Words & Phrases, Perm.Ed., page 691. A special proceeding usually means such a proceeding as may be commenced independently of a pending action by petition or motion, upon notice, in order to obtain special relief. Anderson v. Langula, supra. Its existence is not necessarily dependent upon the existence of any other action. In re Trusteeship Under Will of Rosenfeldt, 184 Minn. 303, 238 N.W. 687; In re Condemnation of Lands Owned by Luhrs, (Antl v. State), 220 Minn. 129, 19 N.W.2d 77. A garnishment proceeding is illustrative of 'a special proceeding,' which is not of itself an ordinary action, but is, however, incidental thereto. Security State Bank of Waldorf v. Brecht, 150 Minn. 502, 185 N.W. 1021. Obviously, an order either granting or denying a motion for the joinder of additional parties defendant or plaintiff in a personal injury action is made in, and is an integral part of, an ordinary action and does not involve 'a special proceeding,' which, separate and apart from the progress and course of such action, adjudicates by a final order a substantial right separate and distinct from any judgment entered upon the merits after all issues have been litigated. See, Bell Lbr. Co. v. Northern Nat. Bank, 171 Wis. 374, 177 N.W. 616. In Lincoln Securities Co. v. Poppe, Inc., 169 Minn. 392, 211 N.W. 470, wherein the court's attention was not directed to the distinguishing features of a special proceeding, we have an erroneous application of the rule based on a misinterpretation of Security State Bank of Waldorf v. Brecht, supra. We are, of course, not here concerned with a 'summary application in an action after judgment.'

3-4. If the order denying a motion for the joinder of additional parties is appealable, it must be on the theory that such order involves The merits of the action or some part thereof pursuant to § 605.09(3). We have heretofore directly held that an order denying a motion for the joinder of additional parties does not involve the merits of the action and therefore is not appealable. McClearn v. Arnold, 173 Minn. 183, 217 N.W. 106; Levstek v. National Surety Corp. 203 Minn. 324, 281 N.W. 260. In view, however, of the 1947 amendment of § 540.16 and because of certain other decisions which are fundamentally inconsistent with our holding in the McClearn and Levstek cases, we shall examine the problem anew. In construing the statutory phrase 'From an order involving the merits of the action or some part thereof,' we said in Seeling v. Deposit B. & T. Co. 176 Minn. 11, 13, 222 N.W. 295, 296: '* * * An order is not appealable under this provision unless, in effect, it finally determines the action, Or finally determines some positive legal right of the appellant relating thereto.' ¹ (Italics supplied.)

Did the order herein determine the action with finality, or, in the alternative, did it with finality determine some positive legal right relating to the action? An order which is finally determinative of an action relates to, and is decisive of, the fundamental issues upon which the pending suit is based. Clearly, an order either denying or granting a motion for bringing in additional parties is decisive of no fundamental issue. Is such order, however, Finally decisive of some positive legal right of the appellant with respect to such action? Can it be said that § 540.16 confers a positive legal right upon any person to have additional parties brought into the action? Prior to the 1947 amendment, we uniformly...