Severin v. Medearis

193 N.W. 138, 46 S.D. 408, 1923 S.D. LEXIS 48

Opinion

GATES, J.

Action upon an account for corn and twine furnished, for the use of a binder, and for services in cutting grain, amounting, less a credit, to $79.82, and for services in threshing amounting to $236.32. To the last item defendant pleaded noncompliance by, plaintiff with the provisions of chapter 362, Laws 1919.

At the conclusion of the evidence plaintiff moved for a directed verdict for the whole amount of his claim, which was denied. Thereupon the court directed a verdict for plaintiff for the above items aggregating $79.82. Plaintiff moved in the alternative for judgment notwithstanding the verdict or for a new trial. In one order the court denied the motion for judgment non obstante and granted the motion for a new trial. Plaintiff appeals from the whole of the order.

In so far as the order granted a new trial plaintiff is not aggrieved, and hence has no right of appeal. Rev. Code 1919, § 3145. Section 3168, Rev. Code 1919, describes orders that are appealable. An order denying a miotion for judgment non obstante veredicto is not embraced in any of the provisions of said section, and hence is not appealable. Ripon Hardware Co. v. Hass, 141 Wis. 65, 123 N. W. 659; Stratton v. Rosenquist, 37 N. D. 116, 163 N. W. 723.

The appeal is dismissed.

Note — Reported in 193 N. W. 138. See American Key-Numbered Digest, Appeal and Error, Key-No. 109, 3 C. J. Sec. 343.