Aсtion is brought by plaintiff to recover damages under the Federal Employers’ Liаbility Act for death by wrongful act of plaintiff’s decedent allegedly caused by thе negligence of defendant.
Plaintiff moves to dismiss defendant’s appeal on the ground that neither of said orders is appeаlable. M. S. A. 605.09 provides in part as follows:
“An appeal may be taken to the supreme court by the aggrieved party in the following cases:
* * X- * *
“(4) * * * from an order granting a new trial if the court expressly states therein, or in a memorandum attаched thereto, that the order is based exclusively upon errors of law оccurring at the trial, and upon no other ground; and the court shall specify such errors in its order or memorandum, * * *
In the instant case, the trial court’s order granting plaintiff’s motion for a new trial merely states:
“It Is Ordered that said motion be and the sаme hereby is granted upon the ground and for the reason that the verdict of thе jury is not justified by the evidence.”
Rule 59.01 of Rules of Civil Procedure supersedes § 547.01 and insоfar as here material provides:
“A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes:
* * * -X-
“(7) The verdict * * * is not justified by the evidence, or is contrary to law; but, unless it be so expressly stated in the order*54 granting a new trial, it shall not he presumed, on apрeal, to have been made on the ground that the verdict * * * was not justified by the еvidence.”
The right of appeal is governed by statute in this state. 1 Dunnell, Dig. (3 ed.) § 283. An appeal from an order granting a new trial is not authorized except wherе such order is based exclusively upon errors of law occurring at the trial аnd the trial court expressly states in its order or memorandum the reason for and the grounds upon which such new trial is granted. 1 Dunnell, Dig. (3 ed.) § 300. Since the order granting plaintiff’s motion for a new trial expressly states that said motion was granted “upon the grоund and for the reason that the verdict of the jury is not justified by the evidence,” it is clear that this order is not appealable and the appeal therеfrom must be dismissed. See, Noren v. Hankee,
Moreover, an order refusing to vacate a nonappealable order is generally not appealable because that which cannot be done directly cannot be done indirectly.
Defendant’s contention that the trial court, having granted a new trial on the grounds of the insufficiency of the evidence to support the jury’s verdict for defendant, has thereby in effect granted plaintiff a directed verdict on the issue оf liability is wholly untenable in view of the fact that the. new trial was ordered as to all issues
The motion to dismiss the appeal is granted.
Appeal dismissed.
Notes
There is an exception to the general rule where the first order is nonappealable only because made upon ex parte application. See, Chapman v. Dorsey,