Opinion
No. 34,477.
December 19, 1947.
Appeal and error — affirmance — when required — order denying new trial where no grounds specified in motion.
1. An order denying a motion for a new trial must be affirmed on appeal where the motion specifies no grounds therefor, since there is nothing before this court to review on appeal from such an order.
Same — dismissal of appeal — discretion of supreme court.
2. While it is within the discretion of this court to dismiss an appeal from an order denying a motion for a new trial where the motion for dismissal is made after submission of the case and it appears that the order appealed from was based on a motion which specified no grounds therefor, the motion for dismissal will be denied where examination of the record convinces this court that the trial court's final conclusions on the merits were correct and that no different results on the merits could be arrived at here.
Action in the district court for Dakota county to enjoin engagement in the practice of medicine by defendant in a certain vicinity in violation of a written agreement. After findings for plaintiff, W.A. Schultz, Judge, defendant appealed from an order denying his motion for a new trial. Affirmed.
A.M. Joyce, for appellant.
Grannis Grannis, for respondent.
Action to enjoin defendant from engaging in the practice of medicine in Hastings and vicinity in violation of a written agreement between plaintiff and defendant. The trial court made findings of fact, conclusions of law, and order for judgment in favor of plaintiff. Thereafter defendant moved for amended findings or a new trial. The motion was denied, and this appeal by defendant followed.
1. No appeal lies from that part of the order denying the motion for amended findings. Insofar as the motion for a new trial is concerned, it appears that no grounds were specified therefor. Hence there is nothing before us to review on appeal from the order denying the motion. Clark v. C. N. Nelson Lbr. Co. 34 Minn. 289, 25 N.W. 628; Spencer v. Stanley, 74 Minn. 35, 76 N.W. 953; Hoyt v. Kittson County State Bank, 180 Minn. 93, 230 N.W. 269; Julius v. Lenz, 212 Minn. 201, 3 N.W.2d 10; In re Estate of Williams, 217 Minn. 634, 13 N.W.2d 736.
After having his attention directed to the aforesaid deficiency, defendant moved for dismissal of the appeal and for an order "remanding said case to the District Court agreeable to oral stipulation of counsel made in open court and the oral direction of the Chief Justice pursuant thereto."
Plaintiff has filed an affidavit in opposition to this motion in which he denies that any oral stipulation was made in open court or that this court through its chief justice made any order or direction in connection with the appeal. Our recollection of the proceedings which took place after the close of defendant's argument, of which there is no record, does not conform to defendant's statement that an oral stipulation was entered into or that an order based on such a stipulation was made by this court. It was suggested by this court that counsel, if they so desired, enter judgment and stipulate that an appeal therefrom be submitted on the briefs and arguments filed and made herein. However, no final agreement with reference thereto was reached by counsel at that time.
In the absence of a stipulation, it would appear that under the decisions of this court above cited, since no ground for new trial is stated in the motion therefor, no question of law is presented here, and the order appealed from must be affirmed. See, Clark v. C. N. Nelson Lbr. Co.; Spencer v. Stanley; Hoyt v. Kittson County State Bank; Julius v. Lenz; In re Estate of Williams, supra.
2. Defendant's motion to dismiss the appeal is denied. While an order for dismissal lies within the discretion of this court, a careful examination of the record, including the contract involved, convinces us that in last analysis the trial court's final conclusions were correct, and that no different result could be arrived at even though the appeal were to be considered on its merits.
Order affirmed.