Opinion
No. 33,937.
January 19, 1945.
Appeal and error — nonappealable order.
An order denying a motion to dismiss an action for laches in its prosecution is not appealable.
Appeal by defendant from an order of the municipal court of Minneapolis, Hennepin county, D.E. LaBelle, Judge, denying his motion for dismissal, on the ground of laches in prosecution, of an action against him for the recovery of a fee for medical services and of a garnishment proceeding based thereon. Appeal dismissed.
E. Luther Melin, for appellant.
Emil Wheeler, for respondent.
In 1938, plaintiff served upon defendant a summons and complaint for the recovery of $58 for medical services rendered at defendant's request. No answer was ever interposed; in fact, the action was dormant from its inception in August 1938 until August 1944, when garnishment proceedings, based thereon, were instituted against defendant. Defendant moved to dismiss the action for laches in prosecution and the garnishment proceeding. The court denied the motion but appended to its order a memo indicating that defendant, though in default, upon appropriate motion would be granted leave to answer. From this order, defendant appeals.
The order is not appealable. The rule in this state is clearly stated in State v. Hansen, 183 Minn. 562, 563, 237 N.W. 416:
"Such an order is not appealable. It does not involve the merits of the action, nor is it an order which in effect determines the action, nor does it prevent a judgment from which an appeal may be taken."
The effect of the order was merely to leave the action pending. See, Pillsbury v. Foley, 61 Minn. 434, 63 N.W. 1027; State ex rel. School Dist. v. County of Lincoln, 129 Minn. 300, 152 N.W. 541; Fitzgibbins v. Yennie, 132 Minn. 473, 157 N.W. 114; State v. Riebel, 166 Minn. 497, 207 N.W. 631.
Appeal dismissed.