Malherek v. City of Fargo

• Decision Date: 16 October 1922
• Citation: 49 N.D. 123,190 N.W. 176
• Parties: MALHEREK v. CITY OF FARGO.
• Court: North Dakota Supreme Court

49 N.D. 123

190 N.W. 176

MALHEREK

v.CITY OF FARGO.

Supreme Court of North Dakota.

Oct. 16, 1922.

Syllabus by the Court.

An appeal does not lie from an order dismissing an action.

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

Action by Angeline Malherek against the City of Fargo, a municipal corporation. From an order dismissing the action and directing judgment for defendant, plaintiff appeals. Appeal dismissed, and case remanded.

See, also, 189 N. W. 245.

Taylor Crum, of Fargo, for appellant.

W. H. Shure, of Fargo (B. F. Spalding, of Fargo, of counsel), for respondent.

ROBINSON, J.

In this action plaintiff sues the city of Fargo to recover damages for a personal injury sustained by plaintiff by reason of falling on a slippery sidewalk. The plaintiff appeals from an order dismissing the action and directing the entry of judgment accordingly.

Counsel for defendant objects that an appeal does not lie from such an order. He cites the statute, Comp. Laws, § 7841. Dibble v. Hanson, 17 N. D. 21, 114 N. W. 371, 16 Ann. Cas. 1210;Lough v. White, 13 N. D. 387, 100 N. W. 1084;Weber Case, 4 N. D. 119, 59 N. W. 523, 28 L. R. A. 621;Field v. Elevator Co., 5 N. D. 400, 67 N. W. 147.

Those cases are directly in point and show that according to the settled law an appeal does not lie from an order dismissing an action. Hence the appeal is dismissed, and the case remanded forthwith.

BIRDZELL, C. J., and CHRISTIANSON, BRONSON, and GRACE, JJ., concur.