9 S.D. 502 | S.D. | 1897
This is an appeal from an order made by the circuit court denying the defendant’s motion in that court to dismiss the appeal from the justice’s court, and granting plaintiff’s motion for leave to file an undertaking on appeal in
The respondent in this court moved to dismiss the appeal, on the ground that the order appealed from is not an appealable order. The appellant contends that the order involves the merits of the action, and is, therefore, appealable under subdivision 4 of Sec. 5236, Comp. Laws. That subdivision provides that an ap'peal may be taken from an order ‘ ‘when it involves the merits of the action, or some part thereof.” By this is meant an order decisive of some question or point in the case, as distinguished from mere rulings on matters of practice arising during the progress of the cause. 2 Enc. PI. & Prac. 75. Tested by this rule we are of the opinion that the order is an appealable one. If the defendant in the circuit court had the legal right to a dismissal of the action, a refusal of the court to dismiss it certainly involves the merits; and an order permitting the appellant to file an undertaking when the law does not permit one to be filed also clearly involves the merits. We hold, therefore, that the order is an appealable one, and the motion to dismiss the appeal is denied.
This brings us to the consideration of the main questions, and those are: “(1) Was the defendant (appellant in this court) legally entitled to a dismissal of the appeal by the. circuit court