Greber v. Harris

209 N.W. 30, 167 Minn. 522, 1926 Minn. LEXIS 1375

Opinion

PEE CUEIAM.

This is an appeal from an order granting plaintiff’s motion for leave to amend her reply.

In Todd v. Bettingen, 102 Minn. 260, 113 N. W. 906, 18 L. R. A. (N. S.) 263, an appeal was taken from an order granting plaintiff’s motion to amend his complaint. The appeal was considered on the merits and the order reversed. The appealability of the order does not seem to have been questioned.

Subsequently, in cases which had been appealed to this court and remanded for further proceedings, it was held that an order granting a motion to file an amended or supplemental pleading was not appealable. Stromme v. Rieck, 110 Minn. 472, 125 N. W. 1021; Itasca C. & T. Co. v. McKinley, 129 Minn. 536, 152 N. W. 653; Blied v. Barnard, 130 Minn. 534, 153 N. W. 305; C. G. W. R. Co. v. Zahner, 149 Minn. 27, 182 N. W. 904.

Finally in Swanson v. Alworth, 157 Minn. 312, 313, 196 N. W. 260, it was squarely held that an order denying a motion for leave to file an amended complaint is not appealable under either G. S. 1923, § 9498, subd. 3 or 5. The Chief Justice said:

“To yield to appellant’s construction of the statute, relative to his right to appeal from this order, would be to disturb the established practice, to make two classes of order of this kind, one appealable, and' one non-appealable, which would result in many unnecessary appeals, much confusion and delay.”

In the present case no motion to dismiss the appeal has been made. But the court is unwilling to consider the merits of a nonappealable order and of its own motion orders that the appeal be dismissed.