State ex rel. School District No. 74 v. County of Lincoln , 129 Minn. 300 ( 1915 )

Per Curiam.

A writ of certiorari was issued out of the district court of Lincoln county to review the decision of the board of county commissioners in apportioning school funds under the provisions of section 2696, Gr. S. 1913. Respondents moved the district court under section 8317, Gr. S. 1913, to dismiss the proceeding on the ground that the writ was not sued out within the time limited by section 8313. The motion was submitted upon conflicting affidavits and was denied. Respondents appealed from the order so denying the motion.

The order is not a final order which prevents a judgment, nor does it involve the merits of the proceeding. It is therefore not appealable. Rabitte v. Nathan, 22 Minn. 266; Minnesota Central R. Co. v. Peterson, 31 Minn. 42, 16 N. W. 456; Pillsbury v. Foley, 61 Minn. 434, 63 N. W. 1027. The situation would be different had the motion to dismiss been granted. In such case the proceeding would have been ended, and a hearing or judgment on the merits presented. Minnesota Central R. Co. v. Peterson, supra. The case of Moede v. County of Stearns, 43 Minn. 312, 45 N. W. 435, is not in point. That was an appeal from a judgment rendered on the merits.

Appeal dismissed.