Page:North Dakota Reports (vol. 2).pdf/266

 3. Held further, that, inasmuch as the statute (§ 4828, Comp. Laws) declares that district courts are “always open” except for the trial of issues of fact in actions, it follows that a judge of the district court cannot, at his option, and by the form of an order, or the style of his signature thereto, determine whether a given matter is or is not a court matter.

34 [sic]. No appeal to this court was taken from the order dismissing the appeal, but after the time allowed for appeal had expired a motion was made before the district court to vacate the order of dismissal. The motion was denied, and defendant has attempted to appeal from the order refusing to vacate the first order. Held, that the order refusing to vacate the order dismissing the appeal is not appealable. This court will not take jurisdiction of an order of the district court refusing to vacate an appealable order made by the district court; nor can the time for appeal to this court be extended by an order of the court below vacating or refusing to vacate an appealable order, Whether an order dismissing an appeal from a justice court to a district court is appealable, is not decided.

(Opinion filed November 18, 1891.)

APPEAL from the district court, Richland county; Hon. W. S. Lauper, Judge.

W. E. Purcell aud L. B. Everdell, for appellant. McCumber & Bogart, for respondent.

Action by the Travelers’ Insurance Company against Gertrude Weber for unlawful detainer. Judgment for plaintiff. Defendant appeals. Appeal dismissed. The facts and authorities cited are set out fully in the opinion.

The opinion of the court was delivered by

Wallin, J. This action originated in a justice’s court under the forcible entry and unlawful detainer statute. The justice of the peace rendered judgment in favor of the plaintiff on December 15, 1890. Within the time limited by statute the defendant appealed from said judgment to the district court upon questions of both law and fact, and in the notice of appeal demanded a new trial. On January 5, 1891, plaintiff's counsel, acting upon the theory that (for certain reasons appearing hereafter) an appeal would not lie from such judgment to the district court, obtained the following order to show cause,