
    John Mayall et al. vs. John Burke et al.
    The Clerk of the District Court appended to his return certain papers not filed in his office, and which he was prohibited from filing by the order of the Court below. On motion they were stricken from the return.
    An appeal does not lie from a mere refusal of the District Court to entertain a motion.
    A motion was made at a special term of tbe District Court of Hennepin County on tbe part of tbe plaintiffs, for an order to change tbe place of trial of this action, based upon tbe affidavit of one of tbe plaintiffs, and tbe reply in tbe action. Upon tbe bearing of tbe motion, tbe Court made tbe following order :
    “Tbe counsel for the defendants objects to tbe reception of tbe affidavit, on which this motion is claimed to be based, on tbe ground that the same and also the reply of plaintiffs to the answer of Catharine Burke, are scandalous and impertinent. An inspection of these papers has satisfied me that tbe same were willfully and intentionally drawn, for tbe purpose of manifesting contempt and disrespect for tbe Court, and that tbe same are in violation of all rules of propriety and good order in judicial proceedings, and cannot be received or entertained by the Court. Tbe Clerk is directed not to receive the papers in question upon tbe files of the Court, and tbe plaintiff and bis attorney are directed not to repeat a like offence. Tbe motion therefore fails.”
    Tbe plaintiffs appealed from such order, and tbe Clerk of the District Court appended to bis return tbe affidavit and reply over a special certificate, which appears at length in tbe opinion of tbe Court. When tbe appeal was brought to a hearing, tbe counsel for respondents moved this Court, that tbe said affidavit and reply be stricken from the return, which motion was granted,
    
      L. M. Stewart for Appellant.
    F. R. E. Cornell for Respondents.
   By the Court

Berry, J.

— The Clerk b'elow appended to his return to this Court, and over the following certificate, two papers, one purporting to be a change of venue, and the other a reply to the answer of the defendants in this action :

“State of Minnesota, County of Hennepin, ss : — I, H. O. Hamlin, Clerk of the District Court for Hennepin County, do hereby certify that the papers next preceding this certificate and next after my first certificate of attestation in the foregoing entitled action, are the identical papers referred to in said order or decision denying said motion, and directing the Clerk not to receive the same upon the files of this Court.
Signed.

A motion to strike the certificate and papers from the return was granted. The papers had not been filed in the Clerk’s office, and he could have no official knowledge respecting them, so that his certificate was unauthorized and extra official. Daniels vs. Winslow, 2 Minn., 117; 6 Minn., 542.

These papers having been stricken from the record, there is nothing before this Court except the motion for a change of venue, and the direction of the Court below from which the appeal is taken. The action of the Court below (if such it may be called) seems to have been a refusal to entertain the motion for a change of venue, or in other words to have been a refusal to act. The right of appeal is statutory. Myrick vs. Pierce, 5 Minn., 67. And we are aware of no provision of statute which gives an appeal in cases of this kind. We are cited to Pub. Stat., 673, Sec. 25. If this statute be in force (upon which we express no opinion) it would not seem to reach the case of a refusal to act. At any rato since the affidavit and reply are stricken out, there is nothing here which would enable us to review or examine the proceedings of the Court below.

The appeal is dismissed.  