Holobuck v. Schaffner

Burke, J. In June, 1913, plaintiff brought action against the defendant in' justice court for damages alleged to have been received on account of the trespass of domestic animals. Judgment was entered by default in favor of plaintiff, and appeal taken to the district court. When the case was called for trial in said district court, and before any testimony was taken, plaintiff’s attorney prepared and handed to the attorney for the defendant copies of an amended complaint in such action, but no application was made to the trial court for an order allowing the same to be substituted for the original and filed. At the close of all the testimony, application was made to the court for leave to file the amended complaint. Such leave was granted by the court upon condition that said plaintiff pay to the defendant a term fee of $10, and that the defendant be allowed time to prepare and serve an answer thereto. From this order, defendant has appealed. (1) Section 7841, Comp. Laws 1913, covers the matter of appeal from orders from the district to the supreme court, and reads as follows: “What Orders Reviewable. — The following orders when made by the court may be carried to the supreme court: “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. [346] “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 § 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 of a demurrer; answer or reply 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 upon notice.” The order from which the appeal in the case at bar is taken does not come under any of the above subdivisions, and is clearly not appealable. If an appeal were allowed from this order, skilful litigant by succession of such appeals could greatly delay, if not entirely prevent, final judgment in any case. The authorities are to be found in the annotations following said section in the 1913 Compiled Laws, and we will not reproduce them here. Appeal is accordingly dismissed.