
    Annie Rabitte vs. Henry Nathan.
    November 11, 1876.
    Appeals. — An order of the district court, denying a motion to dismiss an appeal taken to that court, is not an appealable order.
    Appeal by Nathan from an order of the district court for Scott county, Hanscome, J., presiding, (sitting for the judge of the eighth district,) denying a motion to dismiss an appeal from a judgment of the probate court of that county, admitting a will to probate.
    
      M. A. Irwin and Brown <& Pede, for appellant.
    
      Geo. L. & G. E. Otis and Mead & Thompson, for respondent.
   Gileillan, C. J.

This case came into the district court upon an appeal from a decree of the probate court of Scott county. The appellant here made a motion in the district court to dismiss the appeal to that court, and from the order denying that motion appealed to this court. Here the respondent moves to dismiss that appeal.

The effect of the order appealed from was merely to retain the cause in the district court for trial and determination. It does not come within the third sub-division of Gen. St. ch. 86, § 8, which gives an appeal “ from an order involving the merits of the action, or some part thereof,” nor within the fifth sub-division of that section, which gives an appeal “ from an order which in effect determines the action, and prevents a judgment from which an appeal might be taken.” The order did not involve any part of the merits of the action, nor did it determine the action; on the contrary, it was a refusal to determine it in that way.

Appeal dismissed.  