14 N.W.2d 859 | Minn. | 1944
The order, to be appealable, must come within the following provisions of Minn. St. 1941, §
"(3) From an order involving the merits of the action or some part thereof;
* * * * *
"(7) From a final order, affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment."
In Security State Bank v. Brecht,
"* * * The order is appealable, for the reason that it determines the strict legal rights of the parties, having put an end to the action and prevented the entry of a judgment from which an appeal might be taken."
In Dasich v. La Rue Min. Co.
In Rishmiller v. D. R. G. R. Co.
"The order appealed from is an order to vacate an order of dismissal and to reinstate the case. We have no doubt of the jurisdiction of the court to make the order upon proper notice. Macknick *567
v. Switchmen's Union of North America,
"* * * An order involving the merits is one which determines 'the strict legal rights of the parties as contradistinguished from those mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court.' It 'must be decisive of the question involved, or of some strictly legal right of the party appealing. An order which leaves the point involved still pending before the court, and undetermined, cannot be said to involve the merits or affect a substantial right.' To be appealable under this provision the order should be, in its effect, in the nature of a final judgment in the action, or at least a final determination of some material question involved therein. It must be something more than a mere ruling or intermediate order made in the course of the trial on a question of procedure. * * * It is the general rule that no appeal lies from the action of a court which requires a subsequent order or judgment to give it effect." 1 Dunnell, Dig. Supp. § 298, and cases cited.
In our opinion, the order appealed from in an appealable order.
In the case of Wilson v. Davidson Fosse, File No. 33,351, an appeal similar to the one here involved was dismissed by the court without an opinion. Insofar as the decision in that case is contrary to the opinion here expressed, it is overruled.
Motion to dismiss appeal denied.
MR. JUSTICE STREISSGUTH took no part in the consideration or decision of this case. *568