Shema v. Thorpe Bros.
| Decision Date | 27 February 1953 |
| Docket Number | No. 36022,36022 |
| Citation | 238 Minn. 470,57 N.W.2d 157 |
| Parties | SHEMA et al. v. THORPE BROS. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
Order granting motion for summary judgment is an intermediate order and is not appealable under M.S.A. § 605.09.
Ryan, Kain & Mikan, Minneapolis, for appellants.
Morley, Cant, Taylor & Haverstock, A. Lyman Beardsley and Robert F. Henson, Minneapolis, for respondent.
Plaintiffs appeal from an order of the district court granting defendant's motion for summary judgment under Rule 56 of Rules of Civil Procedure. Defendant moves to dismiss the appeal.
Plaintiffs concede that this court's jurisdiction as to appeals is limited to those instances set forth in M.S.A. § 605.09. However, they contend that an order for summary judgment is an adjudication of the merits and therefore an appealable order under § 605.09(3) which provides that an appeal may be taken:
'From an order involving the merits of the action or some part thereof';
This court has consistently held that an order is not appealable under § 605.09(3) unless in effect it finally determines the action or finally determines some positive legal right of the appellant relating thereto. Chapman v. Dorsey, 230 Minn. 279, 41 N.W.2d 438, 16 A.L.R.2d 1015; Seeling v. Deposit B. & T. Co., 176 Minn. 11, 222 N.W. 295; 1 Dunnell, Dig. (3 ed.) § 298. An order for judgment is not such a final determination. It looks to the entry of judgment to effectuate it. Rogers v. Holyoke, 14 Gil. 387, 14 Minn. 514; County of Renville v. City of Minneapolis, 112 Minn. 487, 128 N.W. 669; Wilson v. Tauer, 147 Minn. 466, 180 N.W. 93; Palmer v. First Minneapolis Trust Co., 179 Minn. 381, 230 N.W. 257, 258; State ex rel. Gresham v. Delaney, 212 Minn. 519, 4 N.W.2d 348; 1 Dunnell, Dig. 3ed. § 295 and cases cited note 54, § 298 and cases cited note 20, § 309 and cases cited note 11.
Plaintiffs maintain that an appeal from the judgment will not afford them the same scope of review as an appeal from the order for summary judgment. In this, plaintiffs are in error. In determining the proper scope of review on appeal from a judgment, this court looks to the origin of the judgment. See, Anderson v. Sears, Roebuck & Co., 223 Minn. 1, 26 N.W.2d 355; Twin City Motor Bus Co. v. Rechtzigel, 229 Minn. 196, 38 N.W.2d 825. Moreover, on an appeal from a judgment 'any intermediate order involving the merits or necessarily affecting the judgment appealed from' may be reviewed. § 605.09(1).
Rule 56.03 of Rules of Civil Procedure in providing that:
'* * * The Judgment sought Shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Italics supplied.)
contemplates the prompt entry of judgment. If such procedure is followed, all...
To continue reading
Request your trial
-
Brown v. Saint Paul City Ry. Co., 36019
...to the rule generally followed heretofore that such orders are reviewable only on appeal from a final judgment. See, Shema v. Thorpe Bros., 238 Minn. ---, 57 N.W.2d 157. It might be well to note here that little could be accomplished by granting a new trial for erroneously compelling a part......
-
Emme v. C.O.M.B., Inc., s. C5-87-1264
...motion is granted or denied. An order granting summary judgment or a Rule 12.02(5) motion is not appealable, Shema v. Thorpe Bros., 238 Minn. 470, 471, 57 N.W.2d 157, 158 (1953), but summary judgment or a judgment of dismissal entered pursuant to that order may be appealed. Rule 103.03(a), ......
-
Minnesota Power & Light Co. v. Carlton County
...Minn. 485, 13 N.W.2d 735; Wilson v. Tauer, 147 Minn. 466, 180 N.W. 93, and cases cited, or from orders for judgment, Shema v. Thorpe Bros., 238 Minn. 470, 57 N.W.2d 157, and cases cited. The other matters being nonappealable, the judgment alone is here for review. See, General Elec. Co. v. ......
-
Williams' Estate, In re, s. 37546
...A value of $15,000 was placed on the homestead. The stocks were valued at $20,523.25 and the bonds at $134,621.3 Shema v. Thorpe Bros., 238 Minn. 470, 57 N.W.2d 157.4 Settem v. Etter, 236 Minn. 514, 53 N.W.2d 467; Annotation, 103 A.L.R. 1104.5 House v. Hanson, 245 Minn. 466, 72 N.W.2d 874.6......