Strecker v. Railson
| Decision Date | 03 March 1910 |
| Citation | 19 N.D. 677,125 N.W. 560 |
| Parties | STRECKER v. RAILSON. |
| Court | North Dakota Supreme Court |
An order denying defendant's motion to dismiss the action, and granting plaintiff's countermotion for leave to amend the complaint, held not appealable.
Appeal from District Court, McIntosh County; Allen, Judge.
Action by Frank H. Strecker against Edward Railson. From an order denying defendant's motion for a dismissal and granting plaintiff's motion to amend his complaint, defendant appeals. Dismissed.A. W. Clyde, for appellant. Nels Larsen, for respondent.
This cause was here on a former appeal. See 16 N. D. 68, 111 N. W. 612, 8 L. R. A. (N. S.) 1099. It was there held that the complaint fails to state facts sufficient to constitute a cause of action, and also that certain testimony offered by plaintiff to prove a foreign judgment of a justice of the peace was inadmissible. The concluding portion of the opinion contained the following language: “For the foregoing reasons, the judgment appealed from is reversed, and the cause remanded for further proceedings according to law; appellant to recover his costs and disbursements in both courts.” The record discloses that after the remittitur was sent down defendant moved, in the district court, for a dismissal of the action, and a countermotion was made by plaintiff for leave to file an amended complaint curing the defects pointed out in the opinion of this court. Defendant's motion was denied, and plaintiff's motion granted on condition of his payment of all costs of both courts as taxed by the clerk. From such order defendant has appealed.
The questions discussed in appellant's brief are not properly before us, for the obvious reason that the order complained of is not an appealable order. It is well settled that no appeal lies from an order refusing to dismiss an action or to nonsuit a plaintiff. 2 Cyc. 596, and numerous cases cited in note 21. It is a well-known fact that our statute relating to appeals, being section 7225, Rev. Codes 1905, was borrowed from Wisconsin. Such statute was construed in Waldo v. Rice, 18 Wis. 405, and the Supreme Court of that state, speaking through Dixon, C. J., held that an order refusing to dismiss a cause for want of prosecution is not appealable. That court has subsequently adhered to the rule there announced. Reed v. Lueps, 30 Wis. 561. We are entirely satisfied with the correctness of the rule thus announced by the Wisconsin...
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Schaff v. Kennelly
...Id., 60 N.D. 710, at page 719, 236 N.W. 340, 82 A.L.R. 1443; Security Nat. Bank v. Bothne, 56 N.D. 269, 217 N.W. 148; Strecker v. Railson, 19 N.D. 677, 125 N.W. 560; Newton: Appellate Practice and Procedure in North Dakota, supra, 27 N.D.L.Rev. 161; 4 C.J.S., Appeal and Error, Sec. 121 b., ......
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Stimson v. Stimson
...with the statutes of Wisconsin, Minnesota, and South Dakota, as they existed at the time of that decision. And in Strecker v. Railson, 19 N.D. 677, 678, 125 N.W. 560, this court stated that our statute relative to appeals borrowed from Wisconsin, and this is doubtless correct. The parent st......
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Stimson v. Stimson
...with the statutes of Wisconsin, Minnesota, and South Dakota, as they existed at the time of that decision. And in Strecker v. Railson, 19 N. D. 677, 678, 125 N. W. 560, this court stated that our statute relative to appeals was borrowed from Wisconsin, and this is doubtless correct. The par......
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Ellingson v. Northwestern Jobbers Credit Bureau
... ... Clearly the court's order denying the motion to dismiss ... is not one therein enumerated. Strecker" v. Railson, ... 19 N.D. 677, 125 N.W. 560. See also Ryan v. Davenport, 5 S.D ... 203, 58 N.W. 568.\" Security Nat. Bank v. Bothne, supra ... \xC2" ... ...