Union Brokerage Co. v. Jensen

This is an action for damages. The defendant did not answer or demur, but moved for a dismissal of the action on the grounds that "the plaintiff has no authority, capacity, or legal right to sue, prosecute, and maintain" the action; that the plaintiff for more than one year preceding the commencement of the action has not been conducting its usual and corporate business in the state as required by law; that for more than one year preceding the commencement of the action the plaintiff failed and neglected to keep and maintain a public office at any place within North Dakota for the transaction of its corporate business; and that for more than one year preceding the commencement of the action plaintiff failed to execute and file with the Secretary of State an instrument in writing constituting and appointing said Secretary of State or his successor as its true and lawful agent and attorney upon whom process may be served. Certain affidavits were submitted in support of said motion. The motion was brought on for hearing pursuant to notice. The trial court denied the motion and the defendant has appealed. The plaintiff has moved to dismiss the appeal on the ground, among others, that the order is not appealable.

The motion to dismiss the appeal must be granted. Appeals from interlocutory orders will lie only in the cases authorized by the statute. Stimson v. Stimson, 30 N.D. 78, 152 N.W. 132; Ostlund v. Ecklund, 42 N.D. 83, 171 N.W. 857. This court has repeatedly held that under the statute of this state (ND Rev Code 1943, § 28-2702; Comp Laws 1913, § 7841) an appeal does not lie either from an order dismissing an action (Re Weber, 4 N.D. 119, 59 N.W. 523, 23 LRA 621; Field v. Great Western Elevator Co. 5 N.D. 400, 67 N.W. 147; Lough v. White, 13 N.D. 387, 100 N.W. 1084; Cameron v. Great Northern R. Co. 8 N.D. 124, 77 N.W. 1016; Hanberg v. National Bank,8 N.D. 328, 79 N.W. 336; Larson v. Walker, 17 N.D. 247, 115 N.W. 838; Dibble v. Hanson, 17 N.D. 21, 114 N.W. 371, 16 Ann Cas 1210; Malherek v. Fargo, 49 N.D. 123, 190 N.W. 176; Grain Growers' Grain Co. v. Michigan, 52 N.D. 785, 204 N.W. 838), or from an order denying a motion to dismiss an action. Strecker v. Railson, 19 N.D. 677, 125 N.W. 560; John Miller Co. v. Minckler, 30 N.D. 360, 152 N.W. 664; Security Nat. Bank v. Bothne, 56 N.D. 269, 217 N.W. 148. See, also, Ellingson v. Northwestern Jobbers Credit Bureau, 58 N.D. 754, 227 N.W. 360; Wall v. First Nat. Bank, 49 N.D. 703, 193 N.W. 51; Torgerson v. Minneapolis, St. P. S. Ste. M.R. Co. 51 N.D. 745, 200 N.W. 1013; Bowen v. Montana L. Ins. Co. 49 N.D. 140, 190 N.W. 314; Baird v. Lefor, 52 N.D. 155, 201 N.W. 997, 38 A.L.R. 807; Warren v. Slaybaugh,58 N.D. 904, 228 N.W. 416; Burdick v. Mann, 59 N.D. 611, 231 N.W. 545; McKivergin v. Atwood, 63 N.D. 73, 246 N.W. 41.

Appeal dismissed.

CHRISTIANSON, Ch. J., and MORRIS, BURKE, NUESSLE and BURR, JJ., concur.