This is an appeal from an order changing the place of trial of this action.
Under our former practice act, as amended in 1865 (Stats. 1865, p. 111), an order granting or refusing to change the place of trial of an action or proceeding was appealable to this court. (Section 2513, Comp. Laws; Table MountainGold Silver Min. Co. v. Waller's Defeat SilverMin. Co., 4 Nev. 218, 97 Am. Dec. 526.) *Page 263
When the present practice act was adopted in 1869, it was provided in the first section of title 9, upon the subject of appeals in civil actions, that "a judgment or order in a civil action except when expressly made final by this act may be reviewed as prescribed by this title and not otherwise." (Section 3422, Comp. Laws.)
Section 3425 enumerates the judgments and orders from which an appeal may be taken. They are: "First — From a final judgment in an action, or special proceedings commenced in the court in which the judgment is rendered, within one year after the rendition of judgment. Second — From a judgment rendered on an appeal from an inferior court, within ninety days after the rendition of the judgment. Third — From an order granting or refusing a new trial, from an order granting or dissolving an injunction, and from an order refusing to grant or dissolve an injunction, from an order dissolving or refusing to dissolve an attachment, and from any special order made after the final judgment, within sixty days after the order is made and entered in the minutes of the court. Fourth — From an interlocutory judgment or order in cases of partition which determines the right of the several parties, and directs partition sale, or division to be made, within sixty days after the rendition of the same."
The above provisions omit the provision contained in the prior law that an appeal may be taken from an order granting or refusing to change the place of trial.
Such orders, therefore, are not appealable by the terms of the statute. This was the ruling in the case ofState v. Shaw, 21 Nev. 222, 29 P. 321.
A contrary ruling was made in the case ofElam v. Griffin, 19 Nev. 442, 14 P. 582. In that case the attention of the court was not directed to the change that had been made in the statute.
It is ordered that the appeal be dismissed.
MASSEY, C. J.: I concur. ON PETITION FOR REHEARING.
Per Curiam: Rehearing denied.*Page 270