If thе order in question is appealable to this court, it must bе by virtue of subdivision 2 of section 10, or the first paragraph оf subdivision 4 of the same section* chapter 264, Laws of 1860. Subdivisiоn 2 gives an appeal from a final order, affecting a substantial right in special proceedings, or upоn a summary application in an action after judgmеnt. The first paragraph of subdivision 4 gives an appeаl when the order involves the merits of an action, or sоme part thereof. The special proceedings here spoken of are unquestionably the same mentioned and defined by the Code of Procedure. All remedies in the courts of justice are divided into actiоns and special proceedings. An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement
Was the order one made upon а summary application in the action after judgment? Such is not our understanding of it. An application to set aside an execution issued in the action, or the levy madе under it, or for a stay of proceedings upon it, or to direct the judgment to be satisfied of record, would be suсh an one; but this clearly was not.
It remains to be seen, then, whether it was an order involving the merits of the action, or some part thereof. It seems clear that it was not. The merits of the action had been tried and determinеd; and it was not the purpose or object of the оrder to interfere with them in the slightest particular. It does nоt do so ; and, therefore, cannot be said to involvе the merits of the action. If the statute had read “the mеrits of the judgment, or some part thereof,” the order might have been appeal-able ; but now it is not, and the only remedy of the party aggrieved is that pointed out in Cord v. Southwell (
By the Court. —Appeal dismissed.