140 N.W. 676 | N.D. | 1913
Plaintiff and respondent brought this action in justice court in Morton county. Defendant appeared, and on trial judgment was rendered in favor of the plaintiff. Prom this judgment an appeal was taken on the 14th day of November, 1910, to the district court of Morton county, and a trial de novo demanded. Subsequently, appellant submitted a motion in the district court to reverse and set aside the judgment entered in the justice court, upon the ground that the damages involved in the action were for injury to real property, and that the justice had no jurisdiction because no written, verified pleadings had been made and filed in the justice court. On December 22, 1911, this motion was denied. Prom the order denying it, an appeal is taken to this court. In the consideration of this appeal we are first met with the contention of respondent that the order from which the appeal is taken is not an appealable order, and that therefore the appeal must be dismissed. This objection is well taken. It is elementary that, except as authorized by statute, appeals will not lie. Myrick v. McCabe, 5 N. D. 422, 67 N. W. 143; Tracy v. Scott, 13 N. D. 577 (see p. 578), 101 N. W. 905; Section 7225, Rev. Codes 1905, as amended by chap. 79, Laws of 1907, defines the orders from which appeals may be taken to the supreme court of this state, as follows:
“1. An order affecting a substantial right made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken.
“2. A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment.
“3. When an order grants, refuses, continues, or modifies a provisional remedy, or grants, refuses, modifies, or dissolves an injunction, or refuses to modify or dissolve an injunction, whether such injunction was issued in an action or special proceeding, or pursuant to the provisions of § 7454 of this Code; when it sets aside or dismisses a writ of attachment for irregularity; when it grants or refuses a new trial or when it sustains or overrules a demurrer.
“4. When it involves the merits of an action or some part thereof;*579 when it orders judgment on application therefor on account of the frivolousness of a demurrer, answer, or reply on account of the frivolousness thereof.
“5. Orders made hy the district court or judge thereof, without notice, are not appealable; but orders made by the district court after a hearing is had upon notice, which vacate or refuse to set aside orders previously made without notice, may be appealed to the supreme court when, by the provisions of this chapter, an appeal might have been taken from such order so made without notice, had the same been made upon notice.”
It is perfectly clear that this order does not come within the terms of ¶¶ 2, 3, or 5, of § 1225, supra.
Does it affect a substantial right and determine the action and' prevent a judgment from which an appeal might be taken? We think not. It is apparent from the wording of subdivision 1 that, to bring an order within its terms, it must not only affect a substantial right, but must also, in effect, determine the action and prevent a judgment. It is obvious that this order could in no manner prevent a judgment from which an appeal might he taken. The parties were in court, and could proceed with the trial in precisely the same manner as though this motion had not been submitted and decided. The purpose and the wisdom of this provision are apparent. It prevents multiplicity of appeals in the same action, and enables the party to secure a determination upon questions arising in the progress of litigation, prior to final judgment, on an appeal from the judgment. Otherwise all proceedings in an action might he stayed pending the determination of separate appeals from each order made during the life of the case, and a final judgment thereby prevented or postponed for years. It was well stated in Harris Mfg. Co. v. Walsh, 2 Dak. 41, 3 N. W. 301, when the court, speaking through Judge Moody, said: “In other words, will this court allow parties to bring their cases here by piecemeal, during the pendency of the action in the district court, and apparently for the purpose only of obtaining the opinion of this court upon a question of practice or law, and perhaps wholly unnecessary to a. complete and just disposition of the cause? If by any law binding; upon this court, we are compelled to perform this needless labor, we-shall yield obedience to such an enactment, however disastrous, in our.
Does it involve tbe merits of tbe action or some part thereof, as provided by ¶ 4? We tbink tbis motion is so analogous to tbe one passed upon in Stecker v. Railson, 19 N. D. 677, 125 N. W. 560, as to be controlled by tbe decision in tbat ease where it was held that an order denying defendant’s motion to dismiss an action was not appealable. Tbis order, so far as tbe appellant is concerned, bad tbe same effect as tbe order in tbat case, and it still left tbe action for trial and to proceed to judgment, from which all material rulings made in tbe course of the trial or tbe proceedings leading thereto could be reviewed. For a more extended discussion of tbe question, as to what orders are appealable, see Olson v. Mattison, 16 N. D. 231, and note 112 N. W. 994; Bolton v. Donovan, 9 N. D. 575, 84 N. W. 357; Northern P. R. Co. v. Barlow, 20 N. D. 197, 126 N. W. 233, Ann. Cas. 1912 C, 763; McMahon v. Davidson, 12 Minn. 357, Gil. 232.
Our conclusion on tbis question disposes of appellant’s appeal, but in view of bis insistence tbat tbe want of written pleadings on tbe trial in justice court deprived that court of jurisdiction, we may properly add that we tbink tbis is a mistake. Section 8378, Bev. Codes 1905, provides tbat pleadings in a justice’s court may be oral or written, and need not be verified unless otherwise specially prescribed. Section 8392 provides tbat pleadings must be in writing, and be verified in an action of forcible detainer, or in an action to recover damages for an injury to real property. Tbis action is for damage to uncut grass, and it is claimed tbat it is for injury to real property. Assuming this to be so, did failure to comply with tbe requirements of § 8392, supra, deprive tbe justice court of jurisdiction in tbis case? If it did, tbe distinct court was likewise without jurisdiction. In many of tbe states it is required by statute tbat, in actions for forcible entry and detainer, a verified complaint must be filed before tbe justice may issue tbe summons. In such states it is invariably held tbat tbe complaint must be in writing and verified, and tbat a summons issued without the filing of such a complaint confers no jurisdiction upon the justice. But such is not our statute. It was held in