Warren v. Slaybaugh

Citation228 N.W. 416,58 N.D. 904
Decision Date24 December 1929
Docket NumberNo. 5714.,5714.
PartiesWARREN v. SLAYBAUGH, Sheriff, et al.
CourtUnited States State Supreme Court of North Dakota

OPINION TEXT STARTS HERE

Syllabus by the Court.

The right of appeal from an intermediate order is statutory.

An order overruling a motion to quash an alternative writ of mandamus is not a final order affecting a substantial right made in a special proceeding, within subdivision 2 of section 7841, Compiled Laws of 1913.

A motion to quash an alternative writ of mandamus is not a demurrer within subdivision 3 of section 7841, Compiled Laws of 1913, permittingappeals from orders sustaining or overruling demurrers.

Where the Legislature has failed to provide expressly for the filing of a demurrer in mandamus proceedings and has adopted express provisions making the remedy of mandamus expeditious (section 8467, Comp. Laws 1913), and requiring a case to be heard upon an answer raising a pure question of law, together with an express provision for appeals from “final” orders affecting substantial rights in special proceedings (section 7841), it has manifested an intention that intermediate orders are not to be appealed, rather than an intention that such orders as may be analogous to rulings on demurrers may be appealed as such.

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

Mandamus proceeding by Page D. Warren against Walter E. Slaybaugh, as Sheriff of Ward County, Jessie E. Y. Krueger, and others. From an order denying her motion to quash the alternative writ of mandamus issued, respondent last named appeals. On petitioner's motion to dismiss the appeal. Appeal dismissed.

L. J. Palda, C. E. Brace, and Robert W. Palda, all of Minot, for appellant.

McGee & Goss, of Minot, for respondent petitioner.

BIRDZELL, J.

This is a mandamus proceeding. Upon the application of the petitioner an alternative writ of mandamus issued out of the district court of Ward county on June 12, 1929. The respondent Slaybaugh, as sheriff, made a return to the writ. The respondent Jessie Krueger moved to quash the alternative writ upon grounds which challenged the sufficiency of the petition to entitle the petitioner to the relief sought. The motion to quash was denied, and the respondent appeals from the order.

[1][2][3] The petitioner moves to dismiss the appeal on the ground that the order is not an appealable order under section 7841, Compiled Laws of 1913. The order is clearly not a final order affecting a substantial right made in special proceedings, appealable under paragraph 2 of section 7841. Neither is it an order which involves the merits of an action or some part thereof, under paragraph 4 of section 7841; nor one which would be reviewable upon an appeal from the judgment under section 7842, Compiled Laws of 1913, without an exception in a settled statement of the case. Mooney v. Donovan, 9 N. D. 93, 81 N. W. 50. It is elementary that the right of appeal from such an order as that in question is statutory and, since the statute nowhere in terms authorizes an appeal from an order denying a motion to quash, it is not appealable unless the order may be said to be one overruling a demurrer, and, as such, appealable under paragraph 3 of section 7841. That paragraph reads: “When an order grants, refuses, continues or modifies a provisional remedy, or grants, refuses, modifies or dissolves an injunction or refuses to modify or dissolve an injunction, whether such injunction was issued in an action or special proceeding or pursuant to the provisions of section 8074 of this code; when it sets aside or dismisses a writ of attachment for irregularity; when it grants or refuses a new trial or when it sustains or overrules a demurrer.”

Counsel for appellant contend that an order denying a motion to quash an alternative writ of mandamus is in legal effect an order overruling a demurrer and as such is appealable under the above paragraph, citing cases from Wisconsin and South Dakota under similar statutes in support of the contention. In State ex rel. Town of South Range et al. v. Tax Commission of Wisconsin, 168 Wis. 253, 169 N. W. 555, 556, the Wisconsin court said: “Lest it be thought the court has overlooked the question whether an order superseding a writ of certiorari is appealable, we deem it proper to briefly advert to the matter. The office of a motion to supersede a writ of certiorari is identical with that of a demurrer to a pleading. State ex rel. Bidgood v. Sup'rs of Clifton, 113 Wis. 107, 88 N. W. 1019. So is a motion to quash an alternative writ of mandamus. State ex rel. Mueller v. Thompson, 149 Wis. 488, 498, 137 N. W. 20, 43 L. R. A. (N. S.) 339, Ann. Cas. 1913C, 774;State ex rel. Standard Oil Co. v. Hull 169 N. W. 617 (decided herewith). Each challenges the sufficiency of the petition or relation, and presents the same question for determination that a demurrer does, namely: Is there a cause of action or ground for relief stated? For that reason such motions are in fact demurrers, though they retain their common-law names, and therefore a decision upon them should be and is subject to the same right of appeal that applies to decisions upon demurrers. By so holding, practice is unified, time and expense saved, and the intent of the Legislature as to what are appealable orders effectuated.” And in the case of State ex rel. Standard Oil Company v. Hull, 168 Wis. 269, 169 N. W. 617, which was under consideration at the same time, the court said: “Although this purports to be an appeal from an order quashing an alternative writ and not from a judgment, nevertheless, the motion to quash being in substance and form a demurrer raising the question of sufficiency of the facts alleged in the petition and alternative writ, it is properly here before us on appeal for the reasons stated in the case of State ex rel. Town of South Range et al. v. Tax Commission of Wisconsin , 169 N. W. 555, decided herewith.”

Such was also the holding in State ex rel. v. Thompson, 149 Wis. 488, 137 N. W. 20, 43 L. R. A. (N. S.) 339, Ann. Cas. 1913C, 774. These cases were followed in South Dakota in Mitchell National Bank v. Jones, 51 S. D. 202, 212 N. W. 919. In the latter case a statement in an earlier opinion (Campbell v. City of Watertown, 46 S. D. 574, 195 N. W. 442) to the effect that an order made in a special proceeding (see paragraph 2 of the appeal statute, Revised Code of South Dakota 1919, § 3168, subd. 2; section 7841, subd. 2, Compiled Laws N. D. of 1913), to be appealable, must affect a substantial right and be a final order, was limited to the matter then under consideration by the court and held not to imply that there could be no appeal from an order denying a motion to quash. These decisions of our sister states under similar appeal statutes are strong authority in support of the interpretation of our statute for which the appellant contends; but, however persuasive they may be, they do not have a controlling effect, and before we are justified in accepting the conclusion stated we must be satisfied that a similar construction of our statute carries out the legislative intention.

[4] The first matter to be noticed, in construing section 7841, which provides for appeals from orders, is that the Legislature had in mind and distinguished between orders made in actions and orders made in special proceedings. In providing for appeals from orders made in actions, it required that the order, to be appealable, should in effect determine the action and prevent a judgment from which an appeal might be taken. Subdivision 1. Whereas, an order in a special proceeding, to be appealable, must be a final order affecting a substantial right. Subdivision 2. The next subdivision treats of orders affecting provisional remedies and injunctions; also, orders granting or refusing new trials and sustaining or overruling demurrers.

A motion to quash is not a demurrer. It may serve the same purpose, or it may even be broader in its operation, in that it may reach objections to the anterior proceedings that would not be reached by a demurrer. A motion to quash is not the only proceeding that may have a similar function. An order sustaining an objection to the introduction of evidence at the beginning of a trial on the ground that the complaint does not state facts sufficient to constitute a cause of action (Ross v. Wait et al., 2 S. D. 638, 51 N. W. 866), an order on a demurrer ore tenus (Treat et al. v. Hiles, 75 Wis. 265, 44 N. W. 1088), an order made on a motion to dismiss at the end of the whole case on the ground that the evidence fails to substantiate the essential...

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