West Branch Pants Co. v. Gordon

. Ouristianson. J. Plaintiff brought this action to recover the sum of $228.00 and interest, which he claims is due him from the deféndant for certain goods, wares and merchandise.- The defendant interposed a general denial.. .After issue;w-ais jbinpd1 -plaintiff applied to the court *744 •■(under § 78G4, Cómp. Laws, 1913) for an order for the examination .of defendant before trial. The court granted plaintiffs application, and issued an order requiring- defendant to appear and testify before the judge of the district court at a time and place fixed in the order. On the return day the defendant appeared and moved that the order for examination be vacated and set aside. The motion was denied and defendant has appealed. ■ Plaintiff moves that the appeal be dismissed on the ground that the order sought to be reviewed is not appealable. Under our statute (Comp. Laws, 1913, § 7841) an appeal may be taken to this court from the following orders only: “1. An order affecting a substantial right made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken. 2. A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment. 3. When an order grants, refuses, continues or modifies a provisional remedy, or grants, refuses, modifies or dissolves an injunction or refuses to modify or dissolve an injunction, whether such injunction was issued in an action or special proceeding or pursuant to the provisions of section 8074 of this code; when it sets aside or dismisses a writ of attachment for irregularity; when it grants or refuses a new trial or when it sustains or overrules a demurrer. 4. When it involves the merits of an action or some part, thereof; when it orders judgment on application therefor on account of the frivolousness thereof. 5. Orders made by the district court or judge thereof without notice are not appealable; but orders made by the district court after a hearing is had upon notice which vacate or refuse to set aside orders previously made without notice may be appealed to the supreme court when by the provisions of this chapter an appeal might have been taken from such order so made without notice, had the same been made ujion notice.” . It seems clear that the order sought to be reviewed on this appeal does not fall within any of the classes of orders enumerated. Obviously it does not in effect determine the action and prevent a judgment from which an appeal may be taken. Nor is it an order made in *745 special proceedings, or upon summary application after judgment. Our statute (Comp. Laws, 1913, § 7329) divides all remedies into (1) actions, and (2) special proceedings. An action is distinguished from a special proceeding, and vice versa. The term “special proceedings” includes only remedies not furnished by actions. Adverse examination under § 7864, supra, is a mere proceeding within an action, an incidental part of an action. “It cannot be a special proceeding, because the two terms, 'action’ and 'special proceeding,’ are used in the Code in contradistinction to each other.” Milwaukee Corrugating Co. v. Flagge, 170 Wis. 492, 175 N. W. 777, 778. It is not a provisional remedy. Comp. Laws, 1913, § 7487. And it in no manner “involves the merits of an action or, some part thereof.” The order is, in effect, a ruling on evidence, i. e., the examination of a witness and falls within the rule announced in Kennelly v. Northern P. R. Co. 41 N. D. 395, 170 N. W. 869. Appeal dismissed. Bronson, Ch. J., and Johnson, Nuessle, and Birdzell,'JJ.,. .concur.