Wall v. First Nat. Bank of Crosby

• Decision Date: 13 April 1923
• Citation: 49 N.D. 703,193 N.W. 51
• Parties: WALL v. FIRST NAT. BANK OF CROSBY.
• Court: North Dakota Supreme Court

49 N.D. 703

193 N.W. 51

WALL

v.FIRST NAT. BANK OF CROSBY.

Supreme Court of North Dakota.

April 3, 1922.

Rehearing Denied April 13, 1923.

Syllabus by the Court.

An order denying plaintiff's motion for judgment on the pleadings held not appealable.

Additional Syllabus by Editorial Staff.

Except as authorized by statute, appeals will not lie.

Appeal from District Court, Divide County; John C. Lowe, Judge.

Action by L. O. Wall against the First National Bank of Crosby. From an order denying a motion for judgment on the pleadings, plaintiff appeals. Appeal dismissed.Leighton & Brace, of Minot, for appellant.

George P. Homnes, of Crosby, for respondent.

NUESSLE, J.

This is an attempted appeal from an order of the district court of Divide county denying a motion for judgment on the pleadings. It appears to us that we cannot in any manner pass upon the merits of this appeal or determine the questions raised and discussed in the briefs; this for the reason that we have no jurisdiction to do so.

[1][2] The order complained of is not appealable. It does not come within any of the five subdivisions of section 7841, C. L. 1913, providing what orders may be carried to the Supreme Court. Except as authorized by statute appeals will not lie. See Whitney v. Ritz, 24 N. D. 576, 140 N. W. 676, and cases cited. Appellant argues that the motion is in effect a demurrer. The answer is that, whatever its effect, nevertheless it is not a demurrer. In the absence of the statute (subdivision 3, § 7841), an order overruling a demurrer is not appealable. 2 R. C. L. 43; 3 C. J. 481. It may be contended that the order here in question comes within the fourth subdivision of section 7841, providing that an order is appealable when it involves the merits of an action or some part thereof. We do not believe, however, that this contention is tenable. See McMahon v. Davidson, 12 Minn. 357 (Gil. 232), where, in passing on a statute providing that “an appeal may be taken from an order involving the merits of an action or some part thereof,” it was held an appeal will not lie from an order made on a trial denying a motion for judgment on the pleadings. See, also, as to appealable orders, Persons v. Simons, 1 N. D. 243, 46 N. W. 969;Olson v. Mattison et al., 16 N. D. 231, and note, 112 N. W. 994;Dibble v. Hanson, 17 N. D. 21, and cases cited, 114 N. W. 371, 16 Ann. Cas. 1210;Strecker v. Railson, 19 N. D. 677, 125 N. W. 560;Whitney v. Ritz, 24 N. D. 576, 140 N. W. 676;Thorp v. Lorenz, 34 Minn. 350, 25 N. W. 712;Clement et al. v. Foster et al., 99 N. C. 255, 6 S. E. 186, and note; 3 C. J. 487; 2 R. C. L. 43.

For the foregoing reasons, the appeal must be dismissed; and it is so ordered.

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