Campbell v. Common Council of City of Watertown

195 N.W. 442, 46 S.D. 574, 1923 S.D. LEXIS 87

• Court: South Dakota Supreme Court
• Decided: October 18, 1923
• Docket: File Nos. 5262, 5293
• Status: Published

Opinion

GATES, J.

This is an appeal from an order allowing a writ of certiorari to review certain proceedings of the city of Water-town in the matter of paving Third street N. W.

The appeal is dismissed because the order appealed from is not an appealable order. Section 3168, Rev. Code 1919, defines appealable orders. Certiorari is not an action. Rev. Code 1919, § 2091. It is a special proceeding. Rev. Code 1919, §§ 2092, 2991-3005. In order to be appealable, an order made in a special proceeding must affect a substantial right and- also be a final order. Rev. Code 1919, § 3168, subd. 2.

Manifestly an order allowing a writ of certiorari cannot be said to be a final order. It is merely an interlocutory order.

Note. — Reported in 195 N. W. 4'42. See, Headnote, American Key-Numbered Digest, Appeal and error, Key-No. 83, 3 C. J. Seo. 394.