Owen v. McCormick

5 Mont. 255

Opinion

Galbraith, J.

This is a motion to dismiss the appeal from an order striking the complaint from the files, and overruling a motion to allow it to be amended. It is claimed that this is an appealable order, under the pro visions of the Code of Civil Procedure (R S. 1879, § 408); that “ an appeal may be taken from a final judgment in an action on special proceeding commenced in the court in which the same is rendered;” and that the order striking the complaint from the files is a final judgment, within the meaning of this provision. But it was necessary that something more should be done before it can be said that a final judgment was rendered in the action. For aught that appears in the transcript, this action is still pending in the district court. The plaintiff might still, upon a proper showing, move to amend his complaint by adding the verification. He might have leave to file another complaint. The striking of the complaint from the files does not terminate the action. In Lamb v. McCanna, 14 Minn. 513 (Gil. 385), and afterwards affirmed in Searles v. Thompson, 18 Minn. 316 (Gil. 285), it was held that “an appeal will not lie from an order made on the trial of an action dismissing the action.” This is a step nearer the rendition of a final judgment in the action than the order made by the court in this case. In the case of Lamb v. McCanna, supra, the court, by Gilfillan, C. J., says “that the appeal must be from the judgment, or from the order on the motion for a new trial.” “ An order which does not determine the controversy, but leaves it to proceed, is not appealable.” 3 Estee, Pl. 406. In our opinion, the appeal does not lie from an order refusing to allow an amendment to the complaint, or striking the complaint from the files. The appeal is dismissed.

(All the judges concur.)