142 Minn. 102 | Minn. | 1919
The decision in the court below was filed April 9, 1918, and stay of 30 days granted. May 4, 1918, a motion for a new trial was noticed for hearing June 3. May 15 costs were taxed and judgment entered. A case was settled and allowed, and, by consent of parties, the motion for a new trial was heard on its merits November 22, 1918. The order denying the motion was filed December 3, 1918, and on December 31 the appeal therefrom was perfected. A motion is now made to 'dismiss the appeal upon the ground that it was taken more than six months after the judgment had been entered.
It appears clearly from the return herein that there was a motion for a new trial in the court below under subdivisions 6 and 7, § 7838, G. S. 1913; that this appeal from the order denying it was taken more than six months after a complete judgment had been entered; that the only available grounds suggested for a new trial were errors occurring at the trial, and that the findings and conclusions of law were not justified by the evidence and were contrary to law. The ground of newly discovered evidence mentioned in the motion was not supported by any showing whatever, and must be disregarded. If, therefore, this appeal is now to be considered, it endangers a judgment which has become final and unassailable upon any of the grounds legitimately assigned in the motion. We hold that by an appeal from an order denying a new trial, taken 'after the judgment in the case has become free from attack by appeal, an indirect attempt is made to accomplish that which cannot be done directly. We think this should not be permitted.
The appeal is dismissed.