Page:North Dakota Reports (vol. 2).pdf/489

proceedings. A review of them will profit little. This inquiry is to be solved by our own statutes. Section 1 of the appeal law of 1891 provides that “a judgment or order in a civil action or in a special proceeding, in any of the district courts, may be removed to the supreme court by appeal, as provided in this chapter, and not otherwise.” Section 24 of the same act provides that a final order affecting a substantial right, made in special proceedings, may be reviewed by appeal. Chapter 120, Laws 1891. It is obvious that the order appealed from is not an order in an action. It in no manner affects the merits of the action. It has no connection with any step taken or to be taken in the action itself. It determines no question in the action for or against either party. It does not affect the final judgment. The action can proceed as though it had never been made. It is an episode in an action. It is the vindication by the court of its authority. If it can be regarded as a proceeding in the action, still it is not an appealable order. Certainly it is not the final judgment in the action. Nor is it an order affecting a substantial right in an action, which, in effect, determines the action, and prevents a judgment from which an appeal might be taken. It does not involve the merits of an action. Neither is it one of the orders specifically enumerated in section 24 as appealable. It remains to be considered whether the order was one made in special proceedings, within the meaning of the appeal law. The New York authorities are cited to sustain the contention that it is such an order. An examination of these cases will disclose the fact that the contempt proceedings, which were there held to be special proceedings, were instituted, not primarily to vindicate the authority of the court, but under a statute authorizing such procedure to compel the contemnor, by way of fine, to make good to his antagonist the damage done the latter by the refusal of the former to obey an order or decree of the court. In some cases where the order has been held appealable, the proceeding was instituted as process to compel obedience to an order or decree in equity. Where a statute gives to the injured party a right to institute contempt proceedings to indemnify him against loss by reason of the disobedience by his antagonist of an order, judgment or decree, it