Bowen v. Montana Life Insurance

Per Curiam. This is an action upon an insurance policy which was tried in the district court of Golden Valley county. At the close of the testimony the defendant moved for a directed verdict. The motion was denied and the case was submitted to the jury who failed to agree upon a verdict. Thereupon, the defendant renewed its motion for a directed verdict and also moved for a judgment in its favor notwithstanding the disagreement of the jury. This motion was likewise denied and the defendant appeals from the order of denial entered. This order is not appealable under the provisions of § 7841 of the Compiled Laws for 1913, and hence the appeal does not invoke the appellate jurisdiction, of this court. It would seem that if the order appealed from were embraced within any part of § 7841, defining reviewable orders, it would come within subdivision 1. This subdivision provides that an order may be carried to the supreme court if it affects “a substantial right when” it “in effect determines the action and prevents a judgment from which an appeal might be taken.” It is certain that the order in the instant case did not in effect determine the action, for, in the state of the record as it stood upon the refusal to grant the defendant’s motion, the case would stand for trial and the action remain for determination either in favor of the plaintiff or defendant. Neither, in our opinion, do the rulings complained of involve the merits of the action, or any part thereof, within subdivision 4, of § 7841. [142] Under a prior bolding of this court, in the case of Persons v. Simons, 1 N. D. 243, 46 N. W. 969, it was pointed out that an appeal from a-nonappealable order, which, in that case, was in substance to the same effect as the order in the instant case, presents a question going to the jurisdiction of this court to consider the merits. Hence, following the rule in that case, this court has no jurisdiction to review the order appealed from. It follows that the appeal must be dismissed and it is so ordered. Bxbdzell, Ch. J., and ChbistiaNSON, RobiNSON, Bk.0NS0N, and Geacb, LL, concur.