
    CHARLES FITZGIBBINS v. MILTON YENNIE.
    
    April 7, 1916.
    Nos. 19,767—(167).
    Order not appealable.
    A motion to “vacate and set aside the action” is in effect a motion to dismiss the action. An order denying such motion is not appealable. [Reporter.]
    Action in the district court for Dodge county. Prom an order, Childress, L, denying his motion for an order vacating the summons, complaint, affidavit in replevin and all other files in the action on the ground that the action was prohibited by law and would not lie under the allegations set forth in the affidavit and complaint, defendant appealed.
    Dismissed.
    H. J. Edison, for appellant.
    D. C. Sheldon, for respondent.
    
      
       Reported in 157 N. W. 114.
    
   Per Curiam.

Action in claim and delivery for the possession of certain personal property. The property was taken by the sheriff, but was rebonded by and returned to defendant. Whereupon defendant moved to “set aside and vacate” the action on the ground that it could not be maintained since by the complaint it appears that the parties to the action are owners of the property as tenants in common. The motion was denied and defendant appealed. Plaintiff moves to dismiss the appeal on the ground that the order is not appealable. The motion is granted. The motion, below to “vacate -and set aside the action” was in effect a motion to dismiss the action and the order denying the same is clearly not appealable. Pillsbury v. Foley, 61 Minn. 434, 63 N. W. 1027.

Appeal dismissed. 
      
       October, 1915, term calendar.
     