Rondeau v. Beaumette

Elandbau, J. By the Court. On the 29th day of June, 1859, Beaumette recovered a judgment in the District Court of Ramsey county against Rondeau, on which an execution was issued on the 1st day of July following, which execution was returned unsatisfied by the Sheriff. Upon these facts being made to appear to the Judge of the District Court, he on the 6th day of December, 1859, granted an order commanding the Defendant to appear before him and answer concerning his property. On the return day of the order the Defendant appeared and moved to set the same aside for various reasons by him assigned, which motion was overruled, and an order made by the Judge referring the matter to a referee to take the answers of the Defendant, etc. Erom these several orders the Defendant Rondeau appeals to this court. The right to appeal from an order of the District Court is found in Sec, 11 of Chap. 71 of the Com. Stats., pages 621 and 622, the sixth subdivision of which is as follows: “ Erom a final order affecting a substantial right made in a special pro [228] ceeding, or upon a summary application in an action after judgment.” These orders were made upon a summary application in an action after judgment, and in order to be appealable must be final. “ Einal ” is defined in Burrill's Law Dictionary (Part 1, page 490,) to be “ that which terminates or ends a matter or proceeding, not absolutely, however, as the final judgment of an inferior court which admits of an appeal.” “ That which absolutely ends or concludes a matter, as the final judgment of a court which admits of no appeal.” The language of our Statute in this respect is the same as that employed in the New York Code in defining the jurisdiction of the court of appeals in that State, and that court has always held that an order to be appealable must be final. See Howard's N. Y. Code, pages 7 to 16, where most of the cases are collected. The first order granted by the Judge to call the parties before him was in its nature only initial or preliminary, to set the proceedings in motion; and the second which ordered a reference, was simply interlocutory or mesne to supply facts necessarily precedent to the making of any final determination or order in the matter. They were neither of them appealable orders. Appeal dismissed.