1 Reported in 281 N.W. 713. This is a motion to discharge the writ of certiorari issued out of this court to review an order of the industrial commission denying relators' motion to dismiss an appeal to the commission taken by the respondent-employe from a referee's decision denying compensation. The notice of appeal was served within the time fixed by the statute.
Certiorari may issue out of this court to review any award or disallowance of compensation or an "order involving the merits of the case or any part thereof made by the commission, * * *" 1 Mason Minn. St. 1927, § 4320. Relators seek to have the order of the commission reviewed upon the theory that it involves the merits of the case or a part thereof. The order of the commission does not involve *Page 434 the merits of the case or any part thereof. This is settled by our decisions holding that an order denying a motion to dismiss an appeal does not involve the merits of the action nor determine the action, but on the contrary is a refusal to determine it in that way. In Rabitte v. Nathan, 22 Minn. 266, we held that an order of the district court denying a motion to dismiss an appeal from a judgment of the probate court did not involve the merits of the action or any part thereof. Accord: Minnesota Central R. Co. v. Peterson, 31 Minn. 42,16 N.W. 456; Kelly v. Hopkins, 72 Minn. 258, 75 N.W. 374; State ex rel. School District v. County of Lincoln, 129 Minn. 300,152 N.W. 541; State ex rel. Klemer v. District Court, 132 Minn. 100,155 N.W. 1057. See Rutz v. Tennant Hoyt Co. 191 Minn. 227,253 N.W. 665; Gumilla v. Industrial Acc. Comm. 187 Cal. 638,203 P. 397; Marland Refining Co. v. Bivins, 135 Okla. 14,273 P. 212.
The motion to discharge the writ of certiorari is granted.