Grain Growers' Grain Co. v. State of Mich.

• Decision Date: 13 June 1925
• Docket Number: No. 4929.,4929.
• Citation: 52 N.D. 785,204 N.W. 838
• Parties: GRAIN GROWERS' GRAIN CO. v. STATE OF MICHIGAN et al. (UNION TRANSFER CO. et al., Garnishees).
• Court: North Dakota Supreme Court

52 N.D. 785

204 N.W. 838

GRAIN GROWERS' GRAIN CO.

v.STATE OF MICHIGAN et al. (UNION TRANSFER CO. et al., Garnishees).

No. 4929.

Supreme Court of North Dakota.

June 13, 1925.

Syllabus by the Court.

An order for the dismissal of an action is not an appealable order.

Appeal from District Court, Cass County; Cole, Judge.

Action by the Grain Growers' Grain Company, doing business as the Consumers' Cordage Company, against the State of Michigan, doing business under the name and style of the Board of Prison Industries of Michigan, and others, in which the Union Transfer Company and another were garnishees. From an order dismissing the action, plaintiff appeals. Appeal dismissed.Harry Lashkowitz and Leland J. Smith, both of Fargo, for appellant.

Lovell & Horner, of Fargo (Thomas J. Green, Asst. Atty. Gen., of State of Michigan, of counsel), for respondents.

PER CURIAM.

Plaintiff brought this action to recover for the alleged breach of a certain contract for the sale of certain binder twine, which it is asserted that the plaintiff ordered from the defendant, and the defendant agreed to ship to the plaintiff. Service was made under the provisions of law of this state relating to substituted service of summons. After service had been made the defendant moved that the action be dismissed on the ground that it is an action against the state of Michigan; that such state has not given its consent to being sued, and consequently that it is not amenable to the process of the courts of this state. The motion was granted, and plaintiff has appealed from the order dismissing the action.

The appeal must be dismissed. In this jurisdiction it is settled beyond all controversy that an order dismissing an action is nonappealable. See Malherek v. City of Fargo (N. D.) 190 N. W. 176, and authorities cited.

While we are precluded from determining the cause on the merits, we deem it proper to say that an examination of the briefs discloses that the decision of this court in Paulus v. State of South Dakota (N. D.) 201 N. W. 867, was apparently overlooked by counsel for both parties; and it is difficult to see why the rule announced in that case is not applicable under the facts here.

Appeal dismissed.