Jahner v. Kary

169 N.W. 31, 40 N.D. 486, 1918 N.D. LEXIS 94

Opinions

Per Curiam.

On July 3, 1917, the plaintiff recovered a judgment against the defendant in a justice’s court in Stark county. The defendant appealed to the district court. On December. 7, 1917, the district court made an order dismissing the appeal. The order was served upon the defendant’s attorney personally on December 8, 1917. On February 4, 1918, the defendant attempted to appeal from such order, by serving and filing notice of appeal and undertaking on appeal. The record on appeal was transmitted to and filed in the office of the clerk of the supreme court on February 13, 1918. On September 16, 1918, the plaintiff moved for a dismissal of the appeal on the grounds: (1) That the order is not appealable; and (2) that, in any event, the appeal has not been prosecuted with due diligence. In our opinion both grounds would be well taken; but a determination of the first precludes and makes it unnecessary to consider the second ground. That such order is not appealable is well settled by the decisions of this court. See Re Weber, 4 N. D. 119, 28 L.R.A. 621, 59 N. W. 523; Dibble v. Hanson, 17 N. D. 21, 114 N. W. 371, 16 Ann. Cas. 1210.

The appeal is dismissed.