Keegan v. Peterson, 24 Minn. 1

Keegan v. Peterson

24 Minn. 1 | Minn. | 1877

Gileillan, C. J.

The defendants demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Plaintiff moved for judgment, notwithstanding the demurrer, as for want of an answer. This motion was granted, and defendants then moved for leave to answer and this motion was denied. Judgment was entered for plaintiff, and from that the defendants appeal and seek to review those orders. Objection is made that the orders cannot be reviewed on appeal from the judgment, but only on appeals from the orders themselves.

As to the order refusing leave to answer, the objection is well taken. That order did not involve, to any extent, the merits, as presented by the pleadings, nor in any way affect the judgment, and it is only such orders which properly have a place in the judgment roll. Gen. St. c. 66, § 252. On appeal from a judgment this court can review only such questions as are presented by the judgment roll. Gen. St. c. 86, §§ 4, 6.

The objection as to the order for judgment is based on the assumption that it is an order striking out the demurrer. But the order leaves the demurrer to stand as a pleading, and the order and demurrer are properly a part of the judgment roll. The question presented by the complaint and demurrer is, therefore, before us for review.

The complaint is for the taking and converting, under an ■execution against plaintiff, in the hands of the defendant, Christian Peterson, of an article called a “Marsh Harvester,” which is in the complaint described as a “farming utensil.” Eacts are alleged showing it to have been exempt from levy if it is a farming utensil, and the complaint claims that the taking and conversion were wrongful because of the exemption. *4The only question attempted to be raised in support of tbe demurrer is that a “Marsh Harvester” is not a utensil within the meaning of the phrase, “other farming utensils,” used in; the statute regulating exemptions. That article is not one of. so general and universal use that we can take notice of its character. What its character in that respect is must be a question of fact. The complaint alleges as a fact that it is such utensil, and the only way the defendants could raise the question was by taking issue by answer upon that allegation.

The motion for judgment, notwithstanding the demurrer, was properly granted. Judgment affirmed.