Whitney v. Ritz

• Decision Date: 14 February 1913
• Citation: 140 N.W. 676,24 N.D. 576
• Parties: WHITNEY v. RITZ
• Court: North Dakota Supreme Court

140 N.W. 676

24 N.D. 576

WHITNEY v. RITZ

Supreme Court of North Dakota

February 14, 1913

Appeal from an order of the District Court for Morton County Nuchols, J.

Dismissed.

Appeal dismissed.

Oliver Leverson, for appellant.

Real property is such as has the characteristics of permanency of location. Tiedeman, Real Prop. § 1.

Things of a vegetable nature growing in the soil are deemed a part of the realty. Tripp v. Hasceig, 20 Mich. 254, 4 Am Rep. 388.

The measure of damages for destruction of growing grass is the difference between the value of the land for the purpose for which it was used, before and after the fire. Texas & P R. Co. v. Land, 3 Tex.App. Civ. Cas. (Willson) 74; Missouri, K. & T. R. Co. v. Goode, 7 Tex. Civ. App. 245, 26 S.W. 441.

In an action to recover damages, or for an injury to real property the pleadings must be in writing, and verified, to give court jurisdiction. Rev. Codes 1905, § 8392; Ball v. Biggam, 43 Kan. 327, 23 P. 565.

Where a justice has no jurisdiction over the subject-matter of the action, failure to raise such questions in such court does not waive the objection. 12 Enc. Pl. & Pr. 694; Mastick v. Superior Ct. 94 Cal. 347, 29 P. 869; Murry v. Burris, 6 Dak. 170, 42 N.W. 25; 8 Enc. Pl. & Pr. 171.

Where the lower court has no jurisdiction of the subject-matter, the appellate court has none. Vidger v. Nolin, 10 N.D. 353, 87 N.W. 593; Kidder v. Fay, 60 Wis. 218, 18 N.W. 839; Plumket v. Evans, 2 S.D. 434, 50 N.W. 961.

The appellate court cannot remand such case to the lower court. 2 Enc. Pl. & Pr. 23-452.

Where the justice has no jurisdiction because the amount claimed was too great, the district court could acquire no jurisdiction by appeal. Wedgewood v. Charlotte, 112 Iowa 514, 84 N.W. 528; Pincus v. Dowd, 11 Mont. 88, 27 P. 393; Abbott v. Kruse, 37 Ill.App. 551.

Hanley & Sullivan, for respondent.

The order from which appeal is taken is merely an interlocutory order, and is not appealable. Ryan v. Davenport, 5 S.D. 203, 58 N.W. 568; Patterson v. Ward, 6 N.D. 359, 71 N.W. 543; Stecker v. Railson, 19 N.D. 677, 125 N.W. 560; 2 Cyc. 593.

Jurisdiction of a justice court is acquired by the issuance and service of a summons. Rev. Codes 1905, § 8358.

After appeal is taken to the district court, it is within the discretion of that court to allow written pleadings to be filed. McCaffery v. Northern P. R. Co. 22 N.D. 544, 134 N.W. 749; Jerome v. Rusk, 19 S.D. 263, 103 N.W. 26; Clow v. Murphy, 52 Iowa 695, 3 N.W. 723; Bradey v. Mueller, 22 S.D. 534, 116 N.W. 1035; McCoun v. New York C. & H. R. R. Co. 50 N.Y. 176; Rev. Codes 1905, §§ 6883-6886.

OPINION

SPALDING, Ch. J.

Plaintiff and respondent brought this action in justice court in Morton county. Defendant appeared, and on trial judgment was rendered in favor of the plaintiff. From this judgment an appeal was taken on the 14th day of November, 1910, to the district court of Morton county, and a trial de novo demanded. Subsequently, appellant submitted a motion in the district court to reverse and set aside the judgment entered in the justice court, upon the ground that the damages involved in the action were for injury to real property, and that the justice had no jurisdiction because no written, verified pleadings had been made and filed in the justice court. On December 22, 1911, this motion was denied. From the order denying it, an appeal is taken to this court. In the consideration of this appeal we are first met with the contention of respondent that the order from which the appeal is taken is not an appealable order, and that therefore the appeal must be dismissed. This objection is well taken. It is elementary that, except as authorized by statute, appeals will not lie. Myrick v. McCabe, 5 N.D. 422, 67 N.W. 143; Tracy v. Scott, 13 N.D. 577 (see p. 578), 101 N.W. 905; Section 7225, Rev. Codes 1905, as amended by chap. 79, Laws of 1907, defines the orders from which appeals may be taken to the supreme court of this state, as follows:

"1. An order affecting a substantial right made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken.

"2. A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment.

"3. 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 § 7454 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.

"4. When it involves the merits of an action or some part thereof; when it orders judgment on application therefor on account of the frivolousness of a demurrer, answer, or reply on account of the frivolousness thereof.

"5. Orders made by the district court or judge thereof, without notice, are not appealable; but orders made by the district court after a hearing is had upon notice, which vacate or refuse to set aside orders previously made without notice, may be appealed to the supreme court when, by the provisions of this chapter, an appeal might have been taken from such order so made without notice, had the same been made upon notice."

It is perfectly clear that this order does not come within the terms of PP 2, 3, or 5, of § 7225, supra.

Does it affect a substantial right and determine the action and prevent a judgment from which an appeal might be taken? We think not. It is apparent from the wording of subdivision 1 that, to bring an order within its terms, it must not only affect a substantial right, but must also, in effect, determine the action and prevent a judgment. It is obvious that this order could in no manner prevent a judgment from which an appeal might be taken. The parties were in court, and could proceed with the trial in precisely the same manner as though this motion had not been submitted and decided. The purpose and the wisdom of this provision are apparent. It prevents multiplicity of appeals in the same action, and enables the party to secure a determination upon questions arising in the progress of litigation, prior to final judgment, on an appeal from the judgment. Otherwise all proceedings in an action might be stayed pending the determination of separate appeals from each order made during the life of the case, and a final judgment thereby prevented or postponed for years. It was well stated in Harris Mfg. Co. v. Walsh, 2 Dakota 41, 3 N.W. 307, when the court, speaking through Judge Moody, said: "In other words, will this court allow parties to bring their cases here by piecemeal, during the pendency of the action in the district court, and apparently for the purpose only of obtaining the opinion of this court upon a question of practice or law, and perhaps wholly unnecessary to a complete and just disposition of the cause? If by any law binding upon this court, we are compelled to perform this needless labor, we shall yield obedience to such an enactment, however disastrous, in our opinion, it may be to the best interest of suitors, and causing, as it necessarily will, great and useless delay and expense, and enabling litigious persons to use the courts in a manner amounting frequently to a denial of justice."

Does it involve the merits of the action or some part thereof, as provided by P 4? We think this motion is so analogous to the one passed upon in Strecker v. Railson, 19 N.D. 677 125 N.W. 560, as to be controlled by the decision in that case where it was held that an order denying defendant's motion to dismiss an action was not appealable. This order, so far as the appellant is concerned, had the same effect as the order in that case,...