Gulbro v. Roberts

175 N.W. 616, 43 N.D. 455, 1919 N.D. LEXIS 54

• Court: North Dakota Supreme Court
• Decided: November 3, 1919
• Status: Published

Opinions

Bobinson, J.

This is an appeal from an order of the district court denying plaintiff a jury trial without first trying the equitable issues presented by the counterclaim. The statute gives the right to appeal from an order affecting a substantial right made in an action when such order in effect determines the action and prevents a judgment from which an appeal might be taken. Comp. Laws, § 7841, subd. 1. Manifestly the order in question does not in any way determine the action or prevent a judgment from which an appeal might be taken. If the order was erroneous the proper cóurse was for the plaintiff to submit to it, — reserving an objection, — and then to appeal from a judgment, if it should be against him. Were it permissible to appeal from orders regarding the procedure, there would be no end to litigation.

Appeal dismissed, with costs.