Kelly v. Hopkins

• Decision Date: 13 May 1898
• Docket Number: 10,988 - (90)
• Citation: 75 N.W. 374,72 Minn. 258
• Parties: JESSIE KELLY v. D. C. HOPKINS
• Court: Minnesota Supreme Court

75 N.W. 374

72 Minn. 258

JESSIE KELLY v. D. C. HOPKINS

Nos. 10,988 - (90)

Supreme Court of Minnesota

May 13, 1898

Appeal by Jessie Kelly, widow of Frank C. Kelly, deceased, from an order of the district court for Watonwan county, Severance, J., denying a motion to dismiss an appeal from the probate court of said county. Dismissed.

SYLLABUS

Order Refusing to Dismiss Appeal from Probate Court not Appealable.

An order of the district court denying a motion to dismiss an appeal is not appealable.

Charles Cooley and Ashley Coffman, for appellant.

W. S. Hammond, for respondent.

OPINION

START, C.J.

This is an appeal from an order of the district court denying a motion to dismiss the appeal of the administrator of the estate of Frank C. Kelly, deceased, from an order of the probate court refusing to set aside its previous order making an allowance to the appellant as the widow of the deceased. The respondent moves this court to dismiss the appeal, on the ground that such an order is not appealable. The motion must be granted, for an order of the district court refusing to dismiss an appeal is not appealable. It does not involve the merits of the action or any part thereof. It is not an order which, in effect, determines the case and prevents a judgment from which an appeal may be taken, or a final order affecting a substantial right in a special proceeding. See McMahon v. Davidson, 12 Minn. 232 (357); Gurney v. City of St. Paul, 36 Minn. 163, 30 N.W. 661; Exley v. Berryhill, 36 Minn. 117, 30 N.W. 436; Minneapolis Trust Co. v. Menage, 66 Minn. 447, 69 N.W. 224.

Appeal dismissed.