McKivergin v. Atwood

Burr, J. Tbe defendant appeared in tbe district court “specially In tbis action, for tbe purpose only of objecting to tbe jurisdiction of above court oyer tbe person of tbe defendant, because of tbe want of process.” Tbe motion was based upon affidavits and tbe court, after reviewing these and reviewing testimony, denied tbe motion witb leave to tbe defendant to answer. Tbis appeal is from tbe order of tbe court denying tbe “motion for a dismissal of tbe above action on the special appearance for want of process and from tbe whole thereof.” Eespondent moves to dismiss the appeal on tbe ground that tbe order complained of by tbe defendant and sought to be reviewed on tbis appeal is not an appealable order. Tbe motion dismissing tbe appeal must be sustained. “An order of tbe district court overruling an objection to tbe jurisdiction of the court and setting aside a special appearance is mot appealable.” Bennett v. Bennett, 54 N. D. 86, 208 N. W. 846; Baird v. Lefor, 52 N. D. 155, 160, 201 N. W. 997, 38 A.L.R. 807. Section 7841 of the Compiled Laws enumerates tbe orders of the *74 trial court wbicb may be carried to this court upon appeal, specifying five different classes. Tbe order appealed from does not involve tbe •merits of tbe action nor does it “in effect determine tbe action and prevent a judgment from wbicb an appeal might be taken.” These are tbe only classes enumerated in § 7841 wbicb, in any way, can be said to be applicable to tbe appeal. Tbe others refer to orders made after trial; to orders affecting provisional remedies, new trials or demurrer; 'to orders made without notice. As this order does not fall within any of tbe classes specified tbe motion to dismiss tbe appeal is granted. OhbistiaNSON, Ob. J., and Nuessle, Birdzell and Buree, JJ., concur.