First National Bank v. McIlvaine

HANEY, J.
On May 27, 1912, the plaintiff ■ recovered a judgment in this action against the' defendant for $2,599.24 and costs. All proceedings, except the -entry of judgment and taxation of -costs w-er-e stayed for 60 -days. Subsequently the plaintiff brought an action against the defendant and -Sara T. Mellvaine to have certain real property, the record title of which is in Sara T. Mellvaine, -subjected to the payment of th-e aforesaid judgment. Thereafter the defendant moved the court in this- -action for an order requiring the-plaintiff to- withdraw i-t-s-second a-ction on the ground that it was instituted in violation of -the order staying *40proceedings in (this action. Upon the hearing of this motion, the court entered an order directing .the plaintiff Ito make a formal application to dismiss- its 'second -action and- discharge the lis- pendens filed therein within -two days, and providing -that, if the plaintiff failed to comply with such direction, «the court would, upon defendant’s motion., enter an order -dismissing such action and .-discharging the lis pendens. Plaintiff having- declined to withdraw its second action, -the defendant moved to dismiss, which motion was granted, and tire plaintiff -appealed. It also appealed from the -order made in -this, th-e firs-t action, directing it to dismiss' the second one. The defendant now moves to- dismiss such ap-peal for the reason that it involves no substantial right. .Such motion should be granted. ■ ■

The -order entered in this action, relating to the dismissal of the second action, in effect merely informed the parties that the •court would -sustain a.motion -to dismiss in -the second action. It, in effect, denied the relief 'sought by the defendant. An -order ■having 'been entered in -the -second- action dismissing th-e same, from which the plaintiff appealed, the ruling sought to be -reviewed by the plaintiff’s appeal in this action no longer affects any substantial right -of either party. The only material issue is whether the second action should have been dismissed; -such issue is presented-by the appeal in the second action. Neither -the reversal nor affirmance of the -order appealed from in this action could possibly affect the right of -the plaintiff to maintain its second -action.

Th-e plaintiff’s -appeal in this action is- dismissed.