taken in this court by respondent’s counsel that the order sought to be reviewed is not an appealable order. We think the point is well taken. Certainly such order is not in terms made appealable by the statute. But counsel for the appellant insist that an appeal will lie under subdivision 5, supra. Counsel argue that the order refusing to vacate is an order made “by the court” refusing to vacate an appealable order made “at chambers.” In our view, this position is untenable, even from the standpoint of appellant’s counsel, for the reason, as we have shown, that the motion to vacate was not leveled at an appealable order, but was leveled at the peremtory writ. But, as the question involves an important practice question, we prefer to place our ruling distinctively upon another ground. The court had occasion, in considering a case argued with this proceeding, and closely associated with it, to pass upon what are essentially the same questions of practice presented in this record. The decision in that case is handed down with this, and will govern this. We refer to Insurance Co. v. Weber, 50 N. W. Rep. 703. Appellant’s counsel cite Gere v. Weed, 3 Minn, 352 (Gil. 249.) The case is not authority for appellant’s position. That decision was sound when and where it was made, but it was made before that state adopted the system now prevailing there as well as here—i. e., the system under which district courts are “always open,” except for the trial of issues of fact. When that case was decided, conditions differed radically from those existing in this state at present in this: The district court there was not “always open” except for trials of issues of fact in actions; second, the common-law powers of a judge or chancellor at chambers could be exercised by constitutional functionaries styled “court commissioners,” as well as by the judge of the district court; third, at that time, and by virtue of special statutes, the district court had authority to exercise its power as a court, in certain cases, out of term and in vacation. This class of cases, denominated “vacation business,” was clearly distinguished from “‘ chambers business” proper. See opinion in Gere v. Weed. Here we have no “vacation business,” nor orders “in chambers” deciding court matters, no court commissioners wielding the
