244 N.W. 64 | Minn. | 1932
The district court is a court of record. It has a clerk. Its judgments, orders, and proceedings are entered and kept by the clerk *36 in books and files prescribed by G. S. 1923 (1 Mason, 1927) § 195. We need not consider whether an order of the court, not made in open court in the hearing of a case, has any force or effect before filed or made a matter of record by the clerk; but we do hold that no written notice of an order given by an adverse party can set the 30-day time limit running within which to take an appeal until the order is filed with the clerk. G. S. 1923 (2 Mason, 1927) § 9497, reads:
"An appeal from a judgment may be taken within six months after the entry thereof, and from an order within thirty days after written notice of the same from the adverse party."
A notice given prior to the order being filed with the clerk or entered in the minutes or records of the court must be considered premature and of no effect to limit the time within which to appeal. In Exley v. Berryhill,
The notice for the new trial and the order granting it with attached memorandum are made part of the motion to dismiss. The grounds assigned for a new trial were both errors of law and insufficiency of the evidence to support the verdict. The order granting *37 a new trial states no ground for granting the same, but this memorandum is subjoined:
"I am of the opinion that the court erred in the trial of this action in giving the instruction that 'the burden of proving suicide is not placed upon the company by the contract but by the law, and it is not necessary for the company to prove the intent of the insured to take his own life if the facts and circumstances surrounding his death permit the inference that it was suicide,' which instruction was duly excepted to by the plaintiff and that upon this ground a new trial of this action should be granted."
Nowhere does the court state that the order was granted exclusively for errors of law as required by G. S. 1923 (2 Mason, 1927) § 9498(4), as amended by L. 1931, p. 284, c. 252, Mason, 1931 Supp. § 9498(4).
Doubting the appealability of the order, briefs were requested and furnished by the parties upon the point, and upon consideration thereof the conclusion is reached that the order is not appealable. It is sufficient to cite Kramer v. Bennett,
The appeal is dismissed. *38