
    Board of County Commissioners of Sibley County vs. Henry Young & others.
    Feb. 26, 1875.
    "Variance between Summons and Complaint — Non-appealable Order. — Where the summons contains the proper notice prescribed in the case of “an action arising on contract for the payment of money only,” but the complaint on file indicates an “ action for the recovery of money” other than one arising on contract, etc., Held, that an order denying a motion made to set aside the complaint, on the ground of such non-conformity, is not an appealable order.
    Appeal by defendants from an order of the district court for Sibley county, Ghatfield, J., presiding.
    
      Sylvester Kipp, for appellants.
    
      D. Piclcit and F. Oadwell, for respondent.
   By the Court.

This action was commenced in the district court for Sibley county, by the filing of a complaint, and the service of a summons, unaccompanied with a copy of the complaint. The notice contained in the summons was that prescribed in the case of ‘‘an action arising on contract for the payment of money only,” by the provisions of the first subdivision of § 45, ch. 66, Gen. Stat. ; whereas the character of the action, as is claimed, required a notice in conformity with the second subdivision of that section. A motion was made in the district court, by the defendant, to' set aside the complaint, on the ground that it did not, in this respect, conform to the summons. The motion Avas denied, and from the order denying it, defendant appealed to this court. Such an order is not an appealable one. It neither involves the merits of the action, nor any part thereof, nor does it in effect determine the action, and prevent a judgment from Avhich an appeal can be taken. See McCann v. N. Y. Cent. & H. R. R. Co., 50 N. Y. 176.

The appeal is therefore dismissed.  