226 N.W. 846 | Minn. | 1929
Defendant's contention, that G. S. 1923 (2 Mason, 1927) § 9495, gives it the right of appeal, is untenable. True, that section does indicate that the supreme court may order judgment "on appeal from the whole order denying such motion when made in the alternative form, whether a new trial was granted or denied by such order." If that statute were the whole law on the subject, defendant would have the right of appeal which it claims. It does not have that right because by a later statute, L. 1913, p. 699, c. 474 [G. S. 1923 (2 Mason, 1927) § 9498] the right to appeal from an order granting a new trial was abolished except when the order is "based exclusively upon errors occurring at the trial" or unless "the trial court has once granted a new trial in the exercise of its discretion, on the ground that the evidence is not sufficient to support the verdict."
The statement in 3 Dunnell, Minn. Dig. (2 ed.) § 5084, that in "such a case," that is, where "the trial court grants the alternative request of the moving party for a new trial and denies the balance of the motion," the moving party "may appeal from the order as a whole and have reviewed that part of the order denying his motion for judgment," is based upon Kalz v. W. St. P. Ry. Co.
Motion granted. *288