but, to prevent confusion in practice, it must be distinguished from an order, and must preserve its identity. It is a peremptory writ, and is so denominated in all works Sf practice, as well as in the statute. If the writ could be regarded as a judgment, an appeal would lie from it to this court, under § 5536, Comp. Laws. But no appeal to this court has been taken, either from the order sustaining the demurrer or from the peremptory writ of mandamus, miscalled an “order.” More than sixty days after the order sustaining the demurrer was granted, and atter the peremptory writ issued and was served, proceedings were taken in the court below, which indicate that the court, as well as defendant’s counsel, acted upon the theory that the writ, and not the order sustaining the demurrer, was a final order in a special proceeding. The defendant moved in the trial court to vacate the peremptory writ, describing it as an “order.” The motion was made under subdivision 5, supra, upon the theory that the so-called “order” was a mere “chamber’s order.” After hearing counsel, the trial court made the following order: “This action coming on to be heard before me, at my chambers in the city of Wahpeton, county and state aforesaid, on the 13th day of March, A. D. 1891, upon a motion of Purcell & Purcell, attorneys for the defendant herein, to vacate and set aside an order heretofore made, to-wit, on the 10th day of January, 1891, directing the said defendant to issue an execution in an action wherein the Travelers’ Insurance Company, 8 corporation, is plaintiff, and Gertrude Weber is defendant, in favor of the said plaintiff and against the said defendant in said action, for the restitution and possession of the premises described in the complaint of the plaintiff in the said action, and the whole thereof, after hearing the argument of W. E. Purcell on behalf of the defendant and in support of the said motion, and of P. J. McCumber on behalf of the plaintiff and against said motion, now, on motion of P. J. McCumber, attorney for plaintiff, it is hereby ordered and adjudged that the said motion be, and tho same is hereby denied. By the court, W. S. Lauder, Judge. Dated March 13th, 1891.”
From the last mentioned order an appeal has been attempted to be taken to this court by the defendant. The position is
