Griess v. State Investment & Insurance

De Haven, J. The State Investment and Insurance Company executed to plaintiff Griess a policy insuring him against loss from fire of property therein described in the sum of two thousand five hundred dollars, of which amount fifteen hundred dollars was to be paid to [412]defendant Meyer. The loss occurred, and plaintiff brought suit upon the policy to recover the amount thereby agreed to be paid, and as defendant Meyer would not join as a plaintiff, he was made a defendant, so that his interest therein might be determined. Both defendants answered, the insurance company denying its liability, and the defendant Meyer setting forth his interest in the policy, with a demand for a judgment against his co-defendant for the amount alleged to be due him.

The case was tried by a jury, and upon the trial it was orally agreed by all of the parties that the interest of Meyer in the policy sued upon was $1,202.75, and that the jury should find a verdict for the plaintiff or the defendant without any reference to defendant Meyer. This agreement was taken down by the reporter, but was not entered upon the minutes of the court. The case was submitted to the jury, the court saying to them: “So far as the defendant Meyer is concerned, it is stipulated by counsel that he is out of the case, and also so far as your deliberations are concerned.” The jury returned a verdict in favor of plaintiff for the sum of $2,252.50, and judgment was thereupon entered in favor of the plaintiff for that sum, and against the defendant insurance company, but no mention is made in the judgment of the rights of the defendant Meyer, or of any interest which he may have in the amount recovered by plaintiff. The defendant insurance company moved for a new trial, but did not serve a copy of its proposed statement upon its co-defendant, Meyer, and Meyer thereupon moved the court to amend its minutes by entering therein the oral agreement above referred to, and also to dismiss the defendant’s motion for a new trial because no statement" on motion for new trial had been served upon him; both motions were denied, and from the order denying them the defendant Meyer appeals.

1. The order from which this appeal is taken is not, as to either of its branches, an appealable one.

The refusal to dismiss a motion for a new trial does [413]