Overton v. City of Sioux Falls
Opinion of the Court
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DILLON, J.
The question presented to this court for review is an order for continuance imposing conditions. The order was made after the cause had been on trial for more than a day and at a time when the plaintiff had' examined many witnesses, some of whom came from, some distances to be in attendance at the trial. The application for continuance was made by the defendant on affidavits. The court granted the defendant the continuance by imposing conditions: “That the defendant pay to the plaintiff all taxable costs incurred in the action to the date hereof and the further sum' of $50 to defray plaintiff’s expenses of attorney’s fees before defendant is given the right to proceed in the trial of said cause.” ' The respondent insists that the statute does not authorize an appeal from such an intermediate order. We think respondent’s position is correct. The right of appeal is purely statutory.
Clearly, this order did not determine the action, nor did it prevent judgment from being taken. Rev. Code 1919, § 3168, subd. 1. It is simply an intermediate order made during the progress of the trial and ¡is not appealable.
It follows that this appeal must be dismissed. It is so. ordered.
Note. — Reported, in 196 N. W. 297 . See, Headnote (1), American Key-Numbered Digest, Appeal and Error, Key-No. 1, 3 C. J. Sec. 29; (2) Appeal and error, Key-No. 93, 3 C. J. Sec. 295.
'On Rev. Code 1919, Sec. 3168, see annotations Kerr’s Cyc. Codes, 1920, Civ. Pro. Sec. 963.
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