146 Minn. 356 | Minn. | 1920
This action was brought in the municipal court of Waseca. The complaint alleged that in March, 1917, while employed by the Waterville Furniture Company, plaintiff sustained a personal injury which arose out of and in the course of such employment; that he and his employer were both subject to the provisions of the Workmen’s Compensation Act; that the latter was insured pursuant to section 8227, G. S. 1913; that due notice of The injury was given; that'the injury sustained resulted in the permanent loss of 50 per cent of the use of one of plaintiff’s eyes; that his daily wage was $3.25; that he incurred expenses for medical treatment amounting to $51.65; that by reason of the facts above set forth the insurer became indebted to him in the sum of $1,026.25, of which sum $51.65 and no more has been paid; that in September, 1917, pursuant to a contract with defendant, the insurer turned over its assets to defendant, who assumed and agreed to pay its liabilities, including plaintiff’s claim, but had failed to do so. Judgment for $499 was demanded. Defendant demurred and appealed to the district court from an order overruling the demurrer. Plaintiff moved to dismiss the appeal on the sole ground that it was not taken in the manner provided by law. The motion was denied. The demurrer was then argued by counsel for each party and an order made sustaining it. From the judgment entered on such order, plaintiff has appealed.
“All appeals from any judgment, order or action of said court shall*358 be had to the district court * *' * in like manner and under the same rules of practice and procedure as in cases of appeal from justice to district courts, the general laws of this state relating to appeals from justice courts, * * * shall apply to this court.”
It is contended that by the act of 1917 the legislature neither changed nor intended to change the method of taking appeals prescribed by the 1895 municipal court act. The contention cannot be sustained. Section 38 was not intended to make amendments to the statute relating to the manner of appealing from justice courts inapplicable to municipal courts, but to include such courts, so that the procedure in both should be the same in taking appeals to the district court. No other ground for a dismissal of the appeal was suggested in the district court, but it is suggested in plaintiff’s brief, apparently for the first time, that the appeal should have been dismissed because an order of the municipal court overruling a demurrer is not appealable since the amendment to section 38 effected by chapter 104, p. Ill, Laws Í913 (section 280, G. S. 1913). This point was not raised in the district court, plaintiff basing his motion solely on the ground we have already stated. By failing to raise it and by voluntarily appearing and arguing the demurrer after his motion was denied, plaintiff waived any Tight he may have had to have the appeal dismissed on the ground that it was not authorized by statute. Wrolson v. Anderson, 53 Minn. 508, 55 N. W. 597.
Two grounds for demurrer were stated, the first, that the complaint failed to state a cause of action, and the second, that the municipal court had no jurisdiction. The demurrer was good on both grounds and the judgment from which the appeal was taken is, therefore, affirmed.