Page:North Dakota Reports (vol. 2).pdf/271

 they assume, somewhat illogically under the present system, to act as judges and not as courts. Such orders are made to facilitate the hearing of causes pending in court or about to be commenced. This class of orders is quite similar in character, and practically the same orders which under the old system of procedure, were made by judges out of court, and were known as “chambers orders.” This class of orders is usually made with little deliberation, and ex parte, and is intended to be preliminary only. Familiar examples of this class of orders are the orders to publish the summons in actions about to be commenced (§ 4900 Comp. Laws); orders of arrest in arrest and bail proceedings under § 4946; injunctional orders, made ex parte, under § 4984; orders appointing receivers ex parte, under § 5017; also orders staying proceedings, orders to show cause, orders enlarging time to plead, and the like. Whenever any of this class of orders are improperly made, a remedy by motion brought before the court on notice will lie to vacate the same. If the motion to vacate is granted or denied, an appeal will lie, if gt all, under subdivision 5, § 24, c. 120, Laws 1891, which gives an appeal to this court only where the original order was appealabie. Our present appeal law is a transcript from a Wisconsin statute, which was enacted in that state asa part of a system in which the circuit court (corresponding to our district courts) was not “always open,” and where only certain court business proper could, under special statutes, be done by the “judge at chambers.” Hence some parts of the appeal law are out of harmony with our present system of procedure in the district courts, and only a thorough revision of the statutes will give entire smoothness to a system of practice now somewhat incongruous and discordant. But in the case under consideration no difficulties of practice arise. The order dismissing the appeal from the justice’s judgment is not one in its nature preliminary nor was it made ex parte; but, on the contrary, after notice and a hearing from both sides, it was judicially determined that the action was not appealable, and not legally pending in the district court, and hence the appeal was dismissed. The decision was obviously msde by the court, and at a time when the district court was in session, for the