Ostlund v. Ecklund

• Decision Date: 01 April 1919
• Docket Number: 1915
• Citation: 171 N.W. 857,42 N.D. 83
• Court: North Dakota Supreme Court

171 N.W. 857

42 N.D. 83

JULIUS J. OSTLUND, Petitioner and Respondent, v. CHRISTINE ECKLUND, Respondent and Appellant

No. 1915

Supreme Court of North Dakota

April 1, 1919

Appeal from the District Court of Cass County, Cole, J.

Christine Ecklund appeals from an order denying her motion that the petitioner, Julius J. Ostlund, be required to give security for costs.

Appeal dismissed.

Appeal dismissed.

Augustus Roberts, for appellant.

Pfeffer & Pfeffer, for respondent.

CHRISTIANSON Ch. J. GRACE, J., concurring in the result.

OPINION

CHRISTIANSON, Ch. J.

The last will and testament of one Westlund was duly admitted to probate in and by the county court of Cass county on April 7 1917. Thereafter, on November 23, 1917, the above-named petitioner, Julius J. Ostlund, filed his petition in said court contesting said will. Such proceedings were thereafter had that on or about March 23, 1918, a decree was rendered by said county court revoking and annulling the probate of said will and the letters testamentary which had been issued to the executor named in such will. The respondent, Christine Ecklund, appealed from the last-mentioned decree, and that appeal is now pending in the district court of Cass county. The respondent, Christine Ecklund, thereafter moved in said district court that the petitioner be required to furnish security for costs on the ground that he was a nonresident. In support of the motion an affidavit was submitted setting forth the above-stated facts. The affidavit further stated that upon the hearing of the contest in the county court said Julius J. Ostlund testified under oath that he was a resident of the city of Minneapolis, Minnesota; that said Christine Ecklund did thereupon in said county court, by her attorney demand and move that said petitioner be required to give security for costs; that such motion was denied by the county court, and that no security for costs was furnished by the petitioner in said county court. The district court entered an order denying the motion, and Christine Ecklund has appealed therefrom. In this court the petitioner moves to dismiss the appeal on the ground that the order is nonappealable.

It is well settled that interlocutory orders are not appealable unless made so by statute. Stimson v. Stimson, 30 N.D. 78 at 78-80, 152 N.W. 132; Ryan v. Davenport, 5 S.D. 203, 58 N.W. 568. The appealable orders are enumerated in § 7841, Compiled Laws 1913. If the order involved in this case is appealable, it must be classified with those orders covered by subdivision 4 of this section, which grants an appeal from an order "when it involves the merits of an action or some part thereof." In fact it is not contended that the order falls within any of the other provisions of § 7841, supra. Does the order in question involve the merits of an action or some part thereof? We think not. The meaning of the phrase, "involves the merits of an action or some part thereof," has frequently been considered by the courts and legal writers of this country. The question was before this court in Bolton v. Donavan, 9 N.D. 575, 84 N.W. 357. The court said: "The term 'merits' as used by the profession, when applied to actions, usually denotes the subject or ground of an action as stated in the complaint, or the grounds of defense as stated in the answer; and a trial of the merits of an action generally means the elicitation of evidence in support of the averments of fact set out in the pleadings. But the courts, in construing statutes governing appeals from interlocutory orders, have frequently enlarged this meaning, and have held that the phrase, 'involves the merits,' must be so interpreted as to embrace orders which pass upon the substantial legal rights of the suitor, whether such rights do or do not relate directly to the cause of action, or subject-matter in controversy." 9 N.D. 577.

The Encyclopedia of Pleading and Practice says: "Where statutes allow an appeal from interlocutory orders 'affecting a substantial right' or 'involving the merits,' an order in the nature of a final judgment decisive of some question or point in the case is meant, as distinguished from mere rulings on matters of practice arising during the progress of the cause." 2 Enc. Pl. & Pr. 75.

And Corpus Juris says: "An order 'involving the merits,' within the meaning of the statute, must be decisive of the question involved in the cause or of some strictly legal right of the party appealing as distinguished from mere questions of practice. The phrase, 'involves the merits,' has been construed by the courts to embrace orders which pass upon the substantial legal rights of the party complaining, whether such rights do or do not relate directly to the cause of action or subject-matter in controversy." 3 C. J. 452.

This court has held that the following orders are not appealable under subdivision 4, § 7841, supra: (1) An order refusing an application for judgment upon the findings of a jury (Persons v. Simons, 1 N.D. 243, 46 N.W. 969) (2) an order denying defendant's motion to dismiss the action, and granting plaintiff's countermotion for leave to amend the complaint (Strecker v. Railson, 19 N.D. 677, 125 N.W. 560); (3) an order in an action for damages on appeal from a judgment for plaintiff in a justice court, denying a motion by the defendant to reverse and set aside the judgment of the justice court upon the ground that the damages involved were for injury to real property, and that the justice court had no jurisdiction because the pleadings were not in writing and verified as required by law (Whitney v. Ritz, 24 N.D. 576, 140 N.W. 676); (4) an order allowing an amended complaint to be filed (Holobuck v. Schaffner, 30...