White v. Chicago, M. & St. P. R. Co.

• Citation: 41 N.W. 730,5 Dakota 508
• Parties: White v. Chicago, M. & St. P. R. Co.
• Decision Date: 04 February 1889
• Court: United States State Supreme Court of North Dakota

41 N.W. 730

5 Dakota 508

White v. Chicago, M. & St. P. R. Co.

Supreme Court of Territory of Dakota

February 4, 1889

Appeal from district court, Moody county.

Winsor & Kittredge, for appellant. Rice Bros., for respondent.

CARLAND J.

This is an appeal from an order made by the district court of Moody county, at the January term thereof, A. D. 1888, refusing to change the place of trial of said action. This action was instituted in the district court of Moody county prior to May, 1886, for the purpose of recovering damages of the appellant resulting from a fire claimed to have been set out by appellant's engine on October 10, 1885. The first question to be disposed of is the objection of the respondent that the order appealed from is not appealable. Section 23 c. 20, Laws 1887, enumerates the court orders which may be carried to this court on appeal. Said section 23 contains the exact language of section 10, c. 264, Laws Wis., enacted in 1860, being section 11, p. 1635, Tayl. St. Under the latter section the supreme court of Wisconsin held in the cases of Bank v Tallman, 15 Wis. 101; Haas v. Weinhagen, 30 Wis. 326; and Schattschneider v. Johnson, 39 Wis 387,--that an order similar to the one appealed from in this case was appealable. The court of appeals of New York also in the case of Leland v. Hathorn, 42 N.Y. 547, decided that an order refusing to change the place of trial was appealable. The opinion in the latter case gives no reason why such an order is appealable, but it is to be observed that the statute of New York at the time Leland v. Hathorn was decided was the same as the statute upon which the decisions in Wisconsin are based. The decision in Schattschneider v Johnson, 39 Wis. 387, is based upon the authority of Haas v. Weinhagen, 30 Wis. 326. In the latter case the court decided that an order changing the place of trial was appealable either under section 11, above referred to, or section 6, p. 1632, Tayl. St., which latter section provides that upon an appeal from a judgment the supreme court may review any intermediate order involving the merits, and necessarily affecting the judgment. A similar provision is found in our law in section 24, c. 20, Laws 1887. In Bank v. Tallman, supra, the court decided that an order refusing to change the place of trial was appealable upon the grounds stated in the opinion of Justice COLE in the case of Oatman v. Bond, 15 Wis. 23. In the case last mentioned the court held that an order made in an action to foreclose a mortgage, directing that the action be referred to a certain person to take all the testimony to be taken in that state, which either party might desire to use on the trial, was appealable under the fourth clause of section 10, c. 264, Laws Wis. 1860, being the same as the fourth clause of section 11, c. 139, Tayl. St., and the fourth clause of section 23, c. 20, Laws Dak. 1887, for the reason that it deprived the party of a right granted him by the constitution of Wisconsin, viz., to have his witnesses examined in open court, and therefore the order was one which involved the merits of the action. In the case of St. John v. West, 4 How. Pr. 329, Justice SELDEN held that an order denying an application to substitute certain parties as plaintiffs in the place of the original plaintiff, who had deceased since the commencement of the action, was appealable. The judge said that the statute gave to the personal representatives of the deceased the right to come in and continue the action, and therefore an order denying it involved the merits of the action. In Cram v. Bradford, 4 Abb. Pr. 193, it was held that an order which directed a reference in a case in which a reference was not authorized by law was an order involving the merits, and appealable. Justice COLE in Oatman v. Bond, supra, said: "The 'merits' of an action do not relate to the moral and abstract rights of the case, without reference to the constitution of judicial tribunals, or their mode of investigating facts, or their well-established rules of practice." It will thus be seen that the jurisdictions in which sections 23, 24, c. 20, Laws 1887, have been in force, and from which we may be said to have borrowed them, have construed the fourth clause of said section 23 as permitting an appeal from an order similar to the one herein appealed from, for the reason that "it involves the merits of the action, or some part thereof." They have also construed said section 24 as permitting an order similar to the one herein appealed from to be...