Fromme v. Poerschke

The order appealed from involves no part of the merits and affects no substantial right. It is simply declaratory of the fact, which is not disputed, that the defendant by his neglect to serve a case on appeal had waived or abandoned his right to do so; for there is no significant difference between the wprd “abandoned,” used in the order, and the word “waived,” used in rule 33. The order has not in any wise affected the right of either party, and the worst that can be said of it is that it was unnecessary.

As it does not affect any right, it is not appealable, and the appeal must be dismissed, with $10 costs and disbursements. All concur.