Persons v. Simons

• Decision Date: 20 October 1890
• Citation: 1 N.D. 243,46 N.W. 969
• Parties: Persons et al. v. Simons, Sheriff.
• Court: North Dakota Supreme Court

1 N.D. 243

46 N.W. 969

Persons et al.

v.Simons, Sheriff.

Supreme Court of North Dakota.

Oct. 20, 1890.

Syllabus by the Court.

1. An order of the district court refusing an application for judgment upon the findings of a jury is not an appealable order, within the meaning of subdivision 1, § 5236, Comp. Laws 1887, which subdivision is as follows: “An order affecting a substantial right, made in any action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken.” Such an order neither determines an action nor any issue in an action, nor is it the legal effect of such an order to prevent the entry of a judgment from which an appeal might be taken.

2. Held further, that the order is not rendered appealable by the fact that the district court had previously denied defendant's application for judgment on the findings of the jury.

Appeal from district court, Stutsman county; Roderick Rose, Judge.George K. Andrus, J. W. Scott, and Edgar W. Camp, for appellants. Herman Winterer and Frank J. Young, ( J. B. & W. H. Sanborn, of counsel,) for respondent.

Wallin, J.

After a trial had in this action, the jury returned a general verdict, and, in addition thereto, returned answers to certain interrogations submitted to them by the trial court. Subsequently, the defendant, assuming that the findings of the jury were in his favor, moved for judgment upon such findings. The motion was denied. Thereafter the plaintiff, assuming that the findings of the jury entitled them to a judgment, moved the district court upon such findings for judgment in favor of the plaintiffs. The latter motion was likewise denied by the court, and, from the order denying the same, plaintiffs appeal to this court. The refusal of the district court to grant plaintiffs' application for judgment upon the findings is assigned as error by the plaintiffs. No judgment has been entered in the action. In this court a preliminary motion is made by respondent to dismiss the appeal, upon the ground, among others, that an order refusing to enter judgment upon a verdict is not an appealable order. The motion raises a question going to the jurisdiction of the court to consider the merits. If the order is not appealable, this court has not acquired jurisdiction to pass upon any error assigned upon the record which comes up with the order. Appellants claim that the appeal is properly taken, under subdivision 1, § 5236, Comp. Laws, which reads as follows: “An order affecting a substantial right, made in any action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken.” We think the order in question is not appealable under subdivision 1, above quoted. It is true that the order is one “affecting a substantial right.” But, to be appealable, the order must not merely affect a substantial right; it must, in addition thereto, be an order which “in effect determines the action,” and must also be an order which “prevents a judgment from which an appeal might be taken.” The order sought to be appealed from is, in its legal effect, only a refusal of the district court to enter judgment in plaintiffs' favor at the time the application was made, and upon the particular grounds upon which the plaintiffs moved, viz., upon the findings of the jury. As we view the matter, there are two elements lacking in this order which are essential to the appealability under subdivision...