
    Hiram Rogers vs. Thomas Holyoke.
    Ail appeal will not lie from an order made in tlie trial of an action granting a motion for judgment.
    This case presents the same question of practice as that of Lamí) vs. MeGanna, immediately preceding. Issue was joined in the action, and a motion was made by defendant in the district court for Ramsey county, for judgment upon the pleadings, which was granted. The defendant appealed to this court from the order granting such motion ; and the plaintiff, in this court, moves that the appeal be dismissed.
    Bbisbin & PalMee for Appellant.
    I. The court erred in entertaining and granting defendant’s motion for judgment, because—
    1. — The statute does not provide for or authorize such a motion.
    2. — The defendant having answered, denying (as has been held,) all the material allegations of the complaint, and thereby prevented the issuance of an injunction, is estojiped from making the motion, even did the statute authorize it. Gen. Stats., Oh. 66, Sees. 74, 78, 83, 84, 90.
    II. J. Hoen for Respondent.
    
      I. — On tbe motion of respondent to dismiss the appeal.
    The respondent moved in the court below for judgment (upon the pleadings so called.) The court granted the motion and ordered judgment to be entered for the defendant; judgment has not been entered or perfected ; the appeal is. therefore premature and unauthorized.
    What the appellant terms an order is the judgment of the court before it has been perfected.
    The third subdivision of Sec. 8, Chap. 86, Gen. Stats., 511, does not intend such an order as in effect determines the action ; this is plain from the specific provision made for such a case in the fifth subdivision, but in order to sustain an appeal from an order which in effect determines the action, it must be such an order as “prevents a ■judgment,” from which an appeal might be taken. Penna. Insurance Go. vs. Mwrpphy, 5 Minn., 36 ; Cummvngs vs. Heard, 2 Minn., 34, and authorities cited ; Von Glahn vs. Sommer, 11 Minn., 203.
    An appeal was allowed from an order for judgment in express terms by the act of March 8, 1861. Chap. 21 Gen. Laws of 1861, %>. 132.
    This act was expressly repealed by the Gen. Stats, jo. 684.
    The third subdivision of Sec. 8, Gh. 86, Gen. Stat., relied on by the appellant was in existence at the time of the passage of Oh. 21, Laws of 1861 ; in fact it was re-enacted at the same session. Gh. 22, Laws of 1861, ¶. 133.
   By the Court.

GileillaN, Oh. J.

This is an appeal from an order made on the trial of the action, granting a motion for judgment on the pleadings. The court has decided, in the case of Lamb vs. McCanna, ante, p. 513, that an appeal will not lie from such an order. The appeal is dismissed.  