error assigned upon the record which comes up with the order. Appellants claim that the appeal is properly taken, under subdivision 1, § 5236, Comp. Laws, which reads as follows: “An order affecting a substantial right, made in any action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken.” We think the order in question is not appealable under subdivision 1, above quoted. It is true that the order is one “affecting a substantial right.” But, to be appealable, the order must not merely affect a substantial right; it must, in addition thereto, be an order which in effect determines the action,” and must also be an order which “prevents a judgment from which an appeal might be taken.” The order sought to be appealed from is, in its legal effect, only a refusal of the district court to enter judgment in plaintiffs’ favor at the time the application was made, and upon the particular grounds upon which the plaintiffs moved, viz., upon the findings of the jury.
As we view the matter, there are two elements lacking in this order which are essential to the appealability under subdivision 1, § 5236, Comp. Laws: First. The order in question does not “in effect determine the action;” nor does it purport to pass upon or adjudicate any of the issues involved in the case. Second. The order is not one which can be construed in sacha way as to “prevent a judgment in the action from which an appeal might be taken.” The subdivision of the statute under which the appeal is sought to be sustained is identical in language with the statute of Wisconsin regulating appeals from the circuit to the supreme court of that state; and the subdivision above quoted has been frequently construed by the supreme court of Wisconsin with reference to orders of the circuit court directing and refusing to direct the entry of judgment upon verdicts. For reasons which meet with our full approval, the holdings of the supreme court of Wisconsin have, without exception, been against the appealability of such orders. In Murray v. Scribner, (Wis.) 35 N. W. Rep. 311, the court say: “An order for final judgment of plaintiff, and denying defendant’s motion for judgment, being a mere interlocutory order, is not appealable, under Rev. St. Wis. § 3069;” citing other cases from Wisconsin.
