Wall v. First National Bank of Crosby

193 N.W. 51, 49 N.D. 703, 1923 N.D. LEXIS 10

• Court: North Dakota Supreme Court
• Decided: April 3, 1923
• Status: Published

Opinion

Nuessle, J.

This is an attempted appeal from an order of the district court of Divide county denying a motion for judgment on the pleadings. It appears to us that we cannot in any manner pass upon the merits of this appeal or determine the questions raised and discussed in the briefs; this for the reason that we have no jurisdiction to do so.

The order complained of is not appealable. It does not come within any of the five subdivisions of § 7841 Comp. Laws, 1913, providing what orders may be carried to the supreme court. Except as authorized by statute appeals will not lie, see Whitney v. Ritz, 24 N. D. 576, 140 N. W. 676, and cases cited. . Appellant argues that the motion is in effect a demurrer. The answer is that whatever its effect, nevertheless it is not a demurrer. In the absence of the statute subdivision 3, § 7841, an order overruling a demurrer is not appealable. 2 R. C. L. 43 ; 3 C. J. 481. It may be contended that the order here in question comes within the fourth subdivision of § 7841, providing that an order is appealable when it involves the merits of an action or some part thereof. We do not believe, however, that this contention is tenable. See McMahon v. Davidson, 12 Minn. 357, Gil. 232, where in passing on a statute providing that “an appeal may be taken from an order involving the merits of an action or some part thereof,” it was held an appeal will not lie from an order made on a trial denying a motion for judgment on the pleadings. See also as to appealable orders Persons v. Simons, 1 N. D. 243, 46 N. W. 969; Olson v. Mattison, 16 N. D. 231 and note, 112 N. W. 994; Dibble v. Hanson, 17 N. D. 21, 114 N. W. 371, 61 Ann. Cas. 1210 and cases cited; Strecker v. Railson, 19 N. D. 677, 125 N. W. 560; Whitney v. Ritz, 24 N. D. 576, 140 N. W. 676; Thorp v. Lorenz, 34 Minn. 350, 25 N. W. 712; Clement v. Foster, 99 N. C. 255, 6 S. E. 186 and note; 3 C. J. 487; 2 R. C. L. 43.

For the foregoing reasons the appeal must be dismissed and it is so ordered.

Bronson, Ch. J., and Birdzell, Christianson, and Johnson, JJ., concur.