Weinzierl v. Lien

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209 N.W.2d 424 (1973)

Ray G. WEINZIERL, Respondent, v. Donald W. LIEN, et al., Appellants.

No. 43209.

Supreme Court of Minnesota.

July 6, 1973.

Robert H. Simons, Chaska, for appellants.

Robert A. Nicklaus and Dwight J. Leatham, Chaska, for respondent.

Heard before KNUTSON, C. J., and PETERSON, MURPHY, and SCHULTZ, JJ.

PER CURIAM.

Appeal from an order of the district court reinstating the court's findings of fact, conclusions of law, and order for judgment in an action involving a boundary line dispute.

Since the appeal is fatally defective, we dismiss. Rule 103, Rules of Civil Appellate Procedure, sets out those orders from which an appeal of right may be taken. In construing this rule and its antecedent, Minn.St. 605.09, this court has consistently held that an order is not appealable unless in effect it finally determines the action or finally determines some positive legal right of the appellant relating to the action. Johnson v. Giese, 230 Minn. 185, 40 N.W.2d 909 (1950); Shema v. Thorpe Bros., 238 Minn. 470, 57 N.W.2d 157 (1953); Kempf v. Kempf, 287 Minn. 529, 177 N.W.2d 40 (1970). We can perceive of no basis on which an order reinstating findings of fact, conclusions of law, and order for judgment can be given different effect than one denying a motion to amend such an order.

It may be added that we have carefully examined the record and conclude that the exercise of discretionary review under Rule 105 is not warranted since the record amply sustains the trial court's determination.

Appeal dismissed.

Mr. Justice YETKA and Mr. Justice SCOTT, not having been members of this court at the time of the argument and submission, took no part in the consideration or decision of this case.