97 N.W. 546 | N.D. | 1903
In this case plaintiff seeks to recover damages for the destruction by fire of his property, alleged to have been caused by the negligence of the defendant in running an engine not in proper repair, and in negligently operating such engine; that, by reason of such negligence, sparks of fire escaped from such engine, and set fire to the dry grass and other combustible material negligently permitted to accumulate.and remain on the right of way, and was negligently permitted by the defendant to escape from said right of way to plaintiff’s property. The complaint alleges that such engine started the fire which burned plaintiff’s property while going east on September 18, 1902. No objection is raised to the complaint, except that the time of day when such fire was set should be made certain and specific, and the hour when the engine
No motion to dismiss the appeal was made by plaintiff, nor is the appealability of the order argued by him. The defendant claims that the order is appealable, and cites authority for his contention. Whether the order is appealable, or not, is a doubtful question, under the decisions of the different courts based on similar, if not identical statutes with ours. In Minnesota the order was first held appealable in Pugh v. Ry. Co., 13 N. W. 189. That decision was disapproved in American Book Co. v. Kingdom Pub. Co., 71 Minn. 363, 73 N. W. 1089, and was expressly overruled in State v. O’Brien et al., 83 Minn, 6, 85 N. W. 1135. See, also, Spensley v. Janesville Cotton Mfg. Co., 62 Wis. 649, 22 N. W. 574; Young v. Lynch, 66 Wis. 514, 29 N. W. 224; Adamson v. Raymer, 94 Wis. 243, 68 N. W. 1000; Witkowski v. Paramore, 93 N. Y. 467; The Hanover Fire Ins. Co. v. Tomlinson, 58 N. Y. 651. The question of the appealability of the order not having been raised or argued by respondent, and in view of the doubt involved as to the construction to be given to subdivision 4 of section 5626, Rev. Codes 1899, and in view of the importance of this question of practice, and inasmuch as the order appealed from must be affirmed in any event, we have deemed it best to dispose of the question presented, on the merits, without committing ourselves to the view that such an order is appealable, should the question be directly raised in another case in the future.
It remains to be determined whether 'the trial court erred in refusing to make the complaint definite and certain as to the time of day when the engine that caused the fire, as alleged, passed
It therefore follows that defendant’s remedy was not by motion to make the complaint definite and certain. The order is affirmed.