Opinion
No. 35,054.
February 3, 1950.
Appeal and error — nonappealable order.
Where, in a partition proceeding, a counterclaim is interposed asking for reformation of certain deeds affecting the title and the case is tried on the counterclaim only, findings being made and judgment ordered against defendants, who appeal from an order denying amended findings, the order appealed from is not appealable.
Action in the district court for Mille Lacs county for partition of real estate, wherein it was stipulated that the action be tried on the issue of reformation of certain deeds as prayed for in defendants' counterclaim. After findings for plaintiffs, Byron R. Wilson, Judge, defendant Anton A. Giese appealed from an order denying defendants' motion for amended findings, conclusions, and order for judgment. Appeal dismissed.
Wegner, Kohlan Santee, for appellant.
Henry G. Young, for respondents.
This case comes here on an appeal from an order denying defendant Anton A. Giese's motion to amend the findings, conclusions of law, and order for judgment.
The order is nonappealable, unless it falls, as contended by appellant, within M.S.A. 558.215, which provides for appeals from any order or interlocutory judgment made and entered pursuant to §§ 558.04, 558.07, 558.14, or 558.21, relating to partition proceedings.
In the case at bar, brought to partition real estate, defendants counterclaimed for reformation of certain instruments affecting the title, and the order appealed from concerns only the counter-claim and expressly excludes from its terms the partition proceeding. Careful examination of the sections above cited, relating to partition, discloses that the order appealed from does not fall within the terms of any one of them. Therefore, respondents' contention that the order appealed from is not appealable should be sustained.
Appeal dismissed.