Long v. Mutual Trust Life Insurance ( 1934 )

We stated in the opinion that the part of the lower court's order dismissing plaintiff's action was not appealable. On that basis defendant contends that the action still stands dismissed in the lower court. In this he is in error. Where an order is in part appealable, this court can review the entire order. Here this court obviously intended to do just that. The only occasion for our discussing the appealability of these two parts at all was defendant's insistence that the entire order was nonappealable.

We are of the opinion that the part of the order dismissing the action was improperly and inadvertently made and was inserted in the order by the trial court merely as another way of stating the result he wished to reach, namely, to strike the complaint as sham. It is to be noted that the part of the order dismissing the action was made by the court on its own motion and not at defendant's request. Defendant made no motion to dismiss but only to strike the complaint as sham. Dismissals are governed by 2 Mason Minn. St. 1927, § 9322, all other forms of dismissal not provided therein being abolished. Nowhere in that statute is the court given power to dismiss on its own motion except upon the trial of the case and before final submission. Subd. 3. In all other cases the court may dismiss only at the request of one of the parties. This was not a situation where the case was in the course of trial, for here the motion and order were made even before all the pleadings were in. Consequently, the trial court could not in this case dismiss on its own motion and was in error in including such in his order to strike as sham. So, for further clarity, it is ordered that the order appealed from is reversed with instructions to the trial court to reinstate the complaint. Statutory costs are allowed to appellant.

Petition for reargument denied.