Mayall v. Burke

By the Court — Berry, J. — The Clerk b'elow appended to his return to this Court, and over the following certificate, two papers, one purporting to be a change of venue, and the other a reply to the answer of the defendants in this action : “State of Minnesota, County of Hennepin, ss : — I, H. O. Hamlin, Clerk of the District Court for Hennepin County, do hereby certify that the papers next preceding this certificate and next after my first certificate of attestation in the foregoing entitled action, are the identical papers referred to in said order or decision denying said motion, and directing the Clerk not to receive the same upon the files of this Court. Signed. A motion to strike the certificate and papers from the return was granted. The papers had not been filed in the Clerk’s office, and he could have no official knowledge respecting them, so that his certificate was unauthorized and extra official. Daniels vs. Winslow, 2 Minn., 117; 6 Minn., 542. These papers having been stricken from the record, there is nothing before this Court except the motion for a change of venue, and the direction of the Court below from which the appeal is taken. The action of the Court below (if such it may be called) seems to have been a refusal to entertain the motion for a change of venue, or in other words to have been a refusal to act. The right of appeal is statutory. Myrick vs. Pierce, 5 Minn., 67. And we are aware of no provision of statute which gives an appeal in cases of this kind. We are cited to Pub. Stat., 673, Sec. 25. If this statute be in force (upon which we express no opinion) it would not seem to reach the case of a refusal to act. At any rato since the affidavit and reply are stricken out, there is nothing here which would enable us to review or examine the proceedings of the Court below. The appeal is dismissed.