
    STATE v. ROY HANSEN.
    
    June 19, 1931.
    No. 28,629.
    
      John G. Priebe, for appellant.
    
      E dioar d J. Goff, County Attorney, and Per M. Larson, Assistant County Attorney, for the state.
    
      
       Reported in 237 N. W. 416.
    
   Dibell, J.

The defendant appeals from the order denying his. motion to dismiss because of laches the prosecution of a bastardy proceeding.

In 1926 the defendant ivas adjudged in the district court of Hennepin county to be the father of an illegitimate child. On December 16, 1927, there was a reversal. State v. Hansen, 173 Minn. 158, 217 N. W. 146. The result was a new trial. In the early part of 1931 the county attorney indicated a definite purpose to retry the case. The defendant moved to dismiss the proceeding because of laches in prosecution. The motion was denied. He appeals from the order denying it. The state moves to dismiss the appeal upon the ground that the order is not appealable.

Such an order is not appealable. It does not involve the merits of the action, nor is it an order which in effect determines the action, nor does it prevent a judgment from which an appeal may be taken. The order had no greater effect than to retain the case for trial. Pillsbury v. Foley, 61 Minn. 434, 63 N. W. 1027; State ex rel. School Dist. No. 74 v. Lincoln County, 129 Minn. 300, 152 N. W. 541; Fitzgibbins v. Yennie, 132 Minn. 473, 157 N. W. 114; State v. Riebel, 166 Minn. 497, 207 N. W. 631.

If the defendant preserves his record and is convicted, he can assign error on appeal. If his claim of laches is such that the case should not be tried, it stands between him and a conviction. What would have been the right of appeal if the motion had been granted is not of present consequence.

Appeal dismissed.  