Muhlhauser v. Archie Campbell Construction Co.

Although the majority of this court relies heavily on Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228 (1928) and McDermott v. Sway, 78 N.D. 521, 50 N.W.2d 235 (1951), the latter case based on principles stated and analyzed by Judge Birdzell in the former case, the majority does not refer to the first and most fundamental rule laid down in Kohlman — that is, that orders granting new trials stand on a firmer foundation in an appellate court than do orders denying new trials. Kohlman v. Hyland, supra, 219 N.W. 230.

In a still earlier case this court said:

It is true that an order of the court denying…