18 N.W.2d 317 | Minn. | 1945
In Barrett v. Smith,
"* * * If the court has the power to reconsider, as obviously it has, and does so and again denies the motion, why should there not be an appeal, even though the time for appealing from the first order has expired? The answer is in the statute (G. S. 1923 [2 Mason, 1927] § 9497) terminating the right of appeal 30 days from notice of the order. That period cannot be extended by agreement of the parties or order of court. 1 Dunnell, Minn. Dig. (2 ed. Supp.) § 318. So where the second motion results only in confirming the original order, which has neither been vacated nor appealed from within the time limited by statute, the right to appeal is gone beyond power of recall. We cannot hold that the right of appeal is revived or continued by what at best is merely an unsuccessful motion to vacate the first order. Our law has long been settled to the contrary. Worrlein v. Maier,
"* * * A litigant desiring to renew a motion for new trial should make prompt application for leave to submit the second motion, at the same time asking that if such leave be granted the order denying the first motion be vacated pending the consideration and determination of the second. If on such a motion the judge concludes to reconsider the issue on the merits, he should promptly and without hesitation vacate his first order. Thereby all doubt would be removed. The needful express and certain record would be made. What was intended and done would be made to appear plainly and all question of the right of appeal from the second order removed. It would not be a mere nonappealable refusal to vacate a prior order, but in real substance an order denying a new trial and so appealable. The expiration of the period of appeal cannot sensibly be left in doubt or at the mercy of an equivocal motion or mere implication from orders not squarely meeting the matter and showing plainly what has been done.
"A strict and definite rule is needed. We hold it to be that where the right of appeal from an unvacated appealable order has expired the right of appeal is not revived by a negative order on a second motion for the same relief. It being plain that the court is not required even to entertain a second application for the same relief (J. I. Case T. M. Co. v. Huffman,
In General Motors Acceptance Corp. v. Jobe,
"The appeal must be and is dismissed under the rule of Barrett v. Smith,
In In re Guardianship of Jaus,
"Is the order here for review an appealable one? We think that question must be answered in the negative. Insofar as that order denied the motion to vacate the former order it was clearly not appealable. [Citing cases.] The case last cited goes into our prior cases most thoroughly, and the correct procedure is there pointed out to avoid the pitfall into which appellant has unwittingly fallen.
* * * * *
"When the order here for review was made there was still time to appeal from the first order, that of October 12, as the notice was not served until November 7; hence an appeal could be taken at any time up to December 7." *528
In this case the proper practice was not followed. There was no vacation and no application for a vacation of the first order pending consideration of the second one. This court laid down the rule in Barrett v. Smith,
"* * * And if the matter is to be reconsidered, the first order should be vacated pending the reconsideration."
No notice was served upon plaintiff of the filing of the first order denying the motion for new trial. The 30-day period within which to appeal did not start to run. At the time of the filing of the second order, there was therefore time within which to appeal from the first order. Except as to the Jaus case,
Appeal dismissed. *529