Quevli v. First National Bank of Windom ( 1948 )

¹ Reported in 32 N.W.2d 146. On April 30, 1947, this action was dismissed for want of prosecution. On May 29, 1947, plaintiff made a motion for an order amending the order of dismissal by striking out that part of the order which states: "That the motion of said defendant to dismiss said action be, and the same hereby is granted," and inserting in place and stead the following: "That the motion of said defendant to dismiss said action be and the same hereby is denied," coupled with a motion for new trial. The court stated that it assumed the motion was properly before it and properly made, and it further stated that it decided it on the merits. Thereupon, the court denied the second motion, which in effect confirmed its original order of dismissal of the action. The appeal here is from the latter order.

As there was no trial of any sort, we shall ignore plaintiff's motion for a new trial.

This court has consistently held that an order of the district court dismissing an action for want of prosecution is nonappealable. Gottstein v. St. Jean, 79 Minn. 232,82 N.W. 311; Anderson v. Langula, 180 Minn. 250, 230 N.W. 645.

An order refusing to vacate or vacating a nonappealable order is as a general rule also nonappealable. Brown v. Minnesota Thresher Mfg. Co. 44 Minn. 322, 323, 46 N.W. 560, 561, where the court stated:

"* * * If this order of January 5th was not appealable, the one made upon appellant's motion to vacate and set it aside is in the same category, and must be dismissed. It cannot be that a non-appealable order can be brought here for review upon the merits by means of an appeal from an order vacating and setting it aside, or refusing so to do."

Lockwood v. Bock, 46 Minn. 73, 48 N.W. 458; Barrie v. Northern Assur. Co. 99 Minn. 272, 109 N.W. 248; Security State Bank v. Brecht, 150 Minn. 502, 185 N.W. 1021; State ex rel. Gresham v. Delaney, 212 Minn. 519, 4 N.W.2d 348.

An order refusing to vacate an order dismissing an action for want of prosecution is within the general rule.

Appeal dismissed.

MR. JUSTICE PETERSON took no part in the consideration or decision of this case.