Kelly v. Hopkins

START, C. J. This is an appeal from an order of the district court denying a motion to dismiss the appeal of the administrator of the estate of Frank C. Kelly, deceased, from an order of the probate court refusing to set aside its previous order making an allowance to the appellant as the widow of the deceased. The respondent moves this court to dismiss the appeal, on the ground that such an order is not appealable. The motion must be granted, for an order of the district court refusing to dismiss an appeal is not appealable. It does not involve the merits of the action or any part thereof. It is not an order which, in effect, determines the case and prevents a judgment from which an appeal may be taken, or a final order affecting a substantial right in a special proceeding. See McMahon v. Davidson, 12 Minn. 232 (357); Gurney v. City of St. Paul, 36 Minn. 163, 30 N. W. 661; Exley v. Berryhill, 36 Minn. 117, 30 N. W. 436; Minneapolis Trust Co. v. Menage, 66 Minn. 447, 69 N. W. 224. Appeal dismissed.