Harcum v. Benson

• Decision Date: 01 December 1916
• Docket Number: No. 19933[76].,19933[76].
• Citation: 160 N.W. 80,135 Minn. 23
• Parties: HARCUM v. BENSON.
• Court: Minnesota Supreme Court

135 Minn. 23

160 N.W. 80

HARCUM

v.BENSON.

No. 19933[76].

Supreme Court of Minnesota.

Dec. 1, 1916.

Appeal from District Court, Traverse County; S. A. Flaherty, Judge.

Action by Theodore Harcum against J. N. Benson. From an order denying a new trial, plaintiff appeals. Dismissed.

Syllabus by the Court

After the expiration of the six months allowed by law to appeal from a judgment, no appeal lies from an order made before judgment denying a motion for a new trial.

Admission of due service of the notice of appeal does not give validity to such an appeal. W. B. Mitton, of Browns Valley, for appellant.

D. J. Leary, of Browns Valley, for respondent.

HALLAM, J.

[1] 1. The trial of this case resulted in a verdict for defendant. On August 28, 1915, an order was made denying plaintiff's motion for a new trial. Written notice of the entry of the order was not given. On September 3, 1915, judgment was entered for defendant. On April 26, 1916, plaintiff served notice of appeal from the order denying his motion for a new trial.

The appeal was too late. It is true the statute provides that an appeal may be taken from an appealable order within 30 days after written notice of the order from the adverse party. G. S. 1913, § 8000. But this right is undoubtedly cut off when judgment is entered and the time of appeal from the judgment has expired. It will be borne in mind that the granting of a new trial after judgment entered operates ipso facto as a vacation of the judgment. Noonan v. Spear, 125 Minn. 475, 147 N. W. 654. If an appeal could be taken from an order denying a new trial mode before judgment, an appeal could be taken from any interlocutory order of which written notice has not been given, and a judgment might be upset by appeal years after the time for appeal from the judgment has expired. The statute does not intend any such result. It contemplates that a judgment not appealed from shall repose after the time allowed by law to appeal from it has expired. Smith v. Minneapolis Street Ry. Co., 159 N. W. 623. Many cases hold that, since all proceedings in the case are merged in the judgment, to appeal will lie after judgment from any interlocutory order which is reviewable on appeal from the judgment. 3 Corpus Juris, 436, 467; Wilder v. Dunne, 45 Fla. 662,33 South. 508;Banks v. Guinyard, 63 Fla. 334,58 South. 229;Bates v. Holbrook, 89 App. Div. 548,85 N. Y. Supp. 673;American B-H O. & S. Mach. Co. v. Gurnee, 38 Wis. 533;Drake v. Scheunemann, 103 Wis. 458, 79 N. W. 749. And there is much reason for this in our state, since all such orders may be reviewed on appeal from the judgment. G. S. 1913, § 8001; Bilsborrow v. Pierce, 112 Minn. 336, 128 N. W. 16, 299. But this question was not argued by counsel, and we do not decide it. What we do decide is that the right of appeal from such an order does not survive the expiration of the right of appeal from the judgment. This is in accordance...