In a proceeding under G. S. 19.23, §§ 3261-3273, the state charged the defendant with the paternity of the illegitimate child of the complaining witness. Upon her testimony at the preliminary hearing before a justice of the peace, defendant was held to answer to the ch'arge before the dis *498 trict court of Chippewa county. Upon a transcript of the evidence introduced at the hearing before the justice and returned to the district court, defendant moved that the action be dismissed because it appeared from the testimony of the complaining witness that her child was born in Wisconsin and that she had lived there ever since its birth and was maintaining it in that state when the complaint was made. The motion was denied and defendant appealed. .

The state moves for the dismissal of the appeal on the ground that the order denying the motion is not appealable.

The effect of the order was merely to retain the case in the district court for trial and determination. It did not involve any part of the merits of the action, nor did it determine the action. On the contrary, it was a refusal to determine it in any way. It does not come under either the third or the fifth subdivision of G. S. 1923, § 9498. Rabitte v. Nathan, 22 Minn. 266.

Appeal dismissed.