Beresina School Dist. v. Steinwandt

This action was commenced in justice court, and, upon demand for change of venue, was transferred to the police magistrate's court. Here the defendant demurred to the jurisdiction of the police magistrate, and when the demurrer was overruled he withdrew from the case. Judgment was entered in favor of the plaintiff and the defendant appealed to the district court. The notice of appeal states that the appeal was taken "on questions of law and fact;" the particular point of law involved being the validity of the demurrer interposed. However, the appellant included in the notice of appeal this statement:

"You are further expressly notified that should the defendant be ruled against on the above point of law, he desires and hereby requests a new trial in the district court, upon all the issues of law and fact involved in the said action."

No answer was served with the notice of appeal.

The questions involved in the demurrer were argued in the district court and decided against the defendant. The plaintiff then moved to dismiss the appeal "on the ground and for the reason that said appeal has never been perfected by reason of the failure to serve any pleadings in said action," thus challenging the jurisdiction of the court. The court denied the motion and again overruled the demurrer, saying: "We will overrule the demurrer to the complaint and permit the defendant to file his answer." Plaintiff excepted to the ruling of the court in "not allowing the motion to dismiss," and on plaintiff's statement that it wanted to test the validity of the court's ruling, the case was continued and, apparently, is still pending.

The plaintiff then appealed to this court from what is called the "order" of the district court in denying the motion to dismiss. The only "order" shown by the record is the ruling of the court upon the motion to dismiss.

Section 7841 of the Compiled Laws sets forth what orders are appealable. Assuming this ruling to be an order denying a motion to dismiss an appeal yet such an order is not appealable. An order dismissing an appeal for want of jurisdiction, or an order refusing to dismiss an action or appeal on the ground of want of jurisdiction is not an appealable order. See Re Weber, 4 N.D. 119, 28 L.R.A. 621, 59 N.W. 523; Strecker v. Railson, 19 N.D. 677, 125 N.W. 560; Jahner v. Kary, 40 N.D. 486, 169 N.W. 31; Quarton v. O'Neil, 51 N.D. 842, 200 N.W. 1010; Security Nat. Bank v. Bothne, 56 N.D. 269, 217 N.W. 148.

The appeal is dismissed.

CHRISTIANSON, Ch. J., and NUESSLE, BIRDZELL, and BURKE, JJ., concur.