Dodge v. Bell

• Court: Minnesota Supreme Court
• Writing for the Court: GILFILLAN
• Citation: Dodge v. Bell, 37 Minn. 382, 34 N.W. 739 (Minn. 1887)
• Decision Date: 07 November 1887
• Parties: DODGE, JR., EX'R, v BELL.

37 Minn. 382

34 N.W. 739

DODGE, JR., EX'R,vBELL.

Supreme Court of Minnesota.

November 7, 1887.

(Syllabus by the Court.)

An order denying a motion to vacate an order sustaining a demurrer, and for a “new trial” on the demurrer, is not an order refusing a new trial, so as to be appealable, under section 8, c. 86, Gen. St. 1878.

Appeal from district court, Ramsey county; SIMONS, Judge.

T. T. Alexander, for Dodge, appellant.

Homer C. Eller and Chas. N. Bell, for Bell, respondent.

GILFILLAN, C. J.

The defendant demurred to the plaintiff's complaint, and the demurrer was sustained. The plaintiff then made a motion that the court below vacate the order sustaining the demurrer, and “grant him a new trial.” This motion was denied, and from the order denying it the plaintiff appeals to this court.

The order is not appealable. It is not an order refusing a new trial, within the meaning of the fourth subdivision of section 8, c. 86, Gen. St. 1878, giving a right of appeal. This subdivision must be understood to refer to orders granting or refusing new trials in the cases provided by the statute. It is true that a trial is defined by section 214, c. 66, to be “the judicial examination of the issues between the parties, whether they are issues of law or of fact.” But it is not to all trials within that definition that the provisions of sections 253-255, inclusive, of chapter 66, authorizing and regulating applications for new trials, apply. Seven grounds for such application are specified in section 253. By section 254, applications on the fourth, fifth, and seventh of these grounds are to be made upon bills of exceptions or statements of the case, prepared as prescribed in section 255, or upon the judge's minutes. When made for any other cause, they are made upon affidavits. Neither of these modes is applicable to a mere ...