The defendant in this case appeared specially and moved that the service of the summons in the action be set aside. The motion was based upon the grounds that the defendant is a foreign-corporation ; that serviсe of the summons in the action was made within-the state of North Dakota oil May 18, 1929, upon one C. E. Peterson;that said Peterson was not, at the time of such service, and never has been, a managing agent for the defendant; that said Peterson -was not at the time such service was made upon him, or at any other time, acting as agent of, or doing business for, the defendant in the state of North Dakota; that the defendant did not at the time of such service have any рroperty within the state of North Dakota and has never had' any property within such state, and that said defendant did not, at the time of such service, maintain, and has never maintained, an office within the state. After a hearing, at which evidence was submitted by both parties, the trial court made an order denying the motion and the defendant has appealed.
The plaintiff moves this court to dismiss the appeal on the ground that the order is not appealable. In support of the motion plaintiff' cites and relies upon the decision of this court in Security Nat. Bank v. Bothne,
Appellant concedes that the right to appеal from an interlocutory order is purely a statutory one (Stimson v. Stimson,
We have carefully considered the arguments advanced by appellant’s •counsel and are agreed that the order in question here falls squarely within the rule announced in Security Nat. Bank v. Bothne, supra. That case involved the question ivhether an appeal would lie from an order denying a motion to dismiss an action on the ground that substituted service of the summons was defective and hence the trial court without jurisdiction. In disposing of the quеstion thus presented this court said:
“Whether or not the instant action is one in which substituted service may properly be made under the statute (§ 7428, supra), and whether or not the court erred in denying the defendants’ motion to dismiss on the ground of lack of jurisdiction, are questions which we cannot properly determine on this appeal. An order denying a motion to dismiss on the ground of lack of jurisdiction is purely an interlocutory order. The right of appeal from such an ordеr depends wholly upon the statute. Whitney v. Ritz,24 N. D. 576 ,140 N. W. 676 ; Wall v. First Nat. Bank,49 N. D. 703 ,193 N. W. 51 ; Quarton v. O’Neil,51 N. D. 842 ,200 N. W. 1010 . The statute (Comp. Laws 1913, § 7841) enumerates the orders -which may be reviewed on appeal. Clearly the court’s order denying the motion to dismiss is not one therein enumerated. Strecker v. Railson,19 N. D. 677 ,125 N. W. 560 . See also Ryan v. Davenport, 5 S. D. 203,58 N. W. 568 .” Security Nat. Bank v. Bothne, supra.
AVe are unable to see any basis for distinguishing the case here from the case cited. The principle announced in that case is clearly *758 applicable to and controlling here provided the rule there announced is adhered to.
But, as said, appellant contends that the order in question here is one which involves the merits of the action or some part thereof, within the purview of subdivision 4, § 7841, and hence is appealable. In a word, appellant contends that this court ought to repudiate the rule announced in Security Nat. Bank v. Bothne, supra, and over-rule that decision, and adopt the rule announced by the Minnesota court in Plano Mfg. Co. v. Kaufert, supra.
The meaning of the phrase “involves the merits of an action” in statutes relating to appeals is (as the decisions of the courts bear ample evidence) not always easy to ascertain. See St. John v. West, 4 How. Pr. (N. Y.) 329. Whether an order denying a motion to set aside the service of a summons involves the merits of the action or some part thereof within the purview of the statute so that an appeal will lie therefrom is one upon which the authoritiеs are not agreed. The great weight of authority, however, is to the effect that such orders do not involve the merits of the action or some part thereof so as to be appeal-able under statutes authorizing aрpeals from such orders. 3 C. J. 4-79; 2 Standard Proc. p. 712. That the question is a debatable one may-well be assumed from the fact that it has repeatedly arisen and been presented to the courts of last resort for determination. The question was presented to this court in Security National Bank v. Bothne, supra, and after due consideration this court ruled that the order was not an appealable one. While appellant has advanced forcible argument that the order in question ought to be appealable, we are not convinced that our decision in Security Nat. Bank v. Bothne, supra, misconstrued the statute and that the rule there announced ought to be departed from. It is desirable that questions of practice should be stable; and established rules should bo adhered to, unless they are clearly erroneous. Horton v. Wright, B. & S. Co.
Appellant argues, however, that if the order is not appealablе it will be deprived of all relief. This argument is based upon certain language in the decisions in Bolton v. Donovan,
It is also clear that in the circumstаnces, the defendant, having, by a properly restricted appearance, presented his objection to the service of the summons and excepted to the ruling of the trial court in over
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ruling sucb objection, will not be deemed to waive tbe objection to the jurisdiction and lose his right to challenge this ruling on an appeal from the judgment by joining issue and trying the case on the merits. Bes Line Constr. Co. v. Schmidt,
Appeal dismissed.