Hanberg v. National Bank

Wallin, J. After issue was joined in this action, and pursuant to a hearing had in the District Court upon an order to show cause why the action should not be dismissed, the District Court made an order dismissing the action. After excluding immaterial recitals, said order reads as follows: “Ordered, that the said action be, and the same hereby is, dismissed, without costs to either party. Let judgment be entered accordingly. Dated this 10th day of December, 1898. W. S. Lauder, judge of the District Court.” From said order the plaintiffs have attempted to appeal to this Court, and in that behalf have served and filed a notice of appeal and an undertaking on appeal, which notice and undertaking were in the usual form, and were transmitted to this Court with the record. In this Court the point is made by respondent’s counsel that the order of the District Court is not an appealable order, and hence that this Court is without jurisdiction to determine the merits. The point [329] is well taken, and must be sustained. See In re Weber, 4 N. D. 11, 59 N. W. Rep. 523; Cameron v. Railway Co., 8 N. D. 124, 77 N. W. Rep. 1016; Locke v. Hubbard (S. D.) 69 N. W. Rep. 588; Field v. Elevator Co., 5 N. D. 400, 67 N. W. Rep. 147. The appeal will be dismissed. (79 N. W. Rep. 336.) All the judges concurring.