Helmut J. Ullrich, petitioner,





Newburg Township Board,




Filed August 6, 2002

Appeal to proceed

Toussaint, Chief Judge



Fillmore County District Court

File No. C101611


David A. Joerg, Law Offices of David A. Joerg, 209 St. Paul Street S.W., P.O. Box 257, Preston, MN  55965 (for respondent)


Joseph L. Hammell, Rippe Hammell & Murphy, 110 West Main Street, Caledonia, MN  55921 (for appellant)


            Considered at Special Term and decided by Toussaint Chief Judge, Kalitowski, Judge, and Anderson, Judge.


            When the trial court grants a petition for a writ of mandamus, the proper appeal is from a judgment entered pursuant to Minn. Stat. § 586.09 (2000).

S P E C I A L   T E R M   O P I N I O N

TOUSSAINT, Chief Judge


            Respondent Helmut J. Ullrich petitioned appellant Newburg Township Board for the establishment of a cartway under Minn. Stat. § 164.08 (2000).  On December 1, 2001, appellant denied respondent’s petition to establish a cartway to his property.  Respondent challenged the denial of the petition in a mandamus proceeding in district court.  See Horton v. Township of Helen, 624 N.W.2d 591, 594 (Minn. App. 2001) (holding that a petition for writ of mandamus is appropriate to appeal a township’s denial of a petition to establish a cartway pursuant to Minn. Stat. § 164.08), review denied (Minn. June 19, 2001).

            By order on February 6, 2002, the trial court granted respondent’s petition for a writ of mandamus and directed appellant to establish a cartway.  This appeal is taken from the February 6 order.  This court questioned whether judgment should be entered on an order that grants a petition for a writ of mandamus and, if so, whether the proper appeal is from the judgment.  The parties and the trial court administrator submitted memoranda.


            A mandamus action is a “special proceeding.”  Moritz v. Town of Burns, 292 Minn. 165, 166 n.1, 193 N.W.2d 620, 621 n.1 (1972).  Except as otherwise provided by statute, an appeal may be taken from a final order, decision, or judgment affecting a substantial right made in an administrative or other special proceeding.  Minn. R. Civ. App. P. 103.03(g).  In Moritz, the supreme court noted that an order dismissing a mandamus action is appealable as a final order affecting a substantial right made in a special proceeding.  Moritz, 292 Minn. at 166 n.1, 193 N.W.2d at 621 n.1.

            When a petition for mandamus is granted, the mandamus statute contemplates that a judgment will be entered.  The statute provides:

                                    A plaintiff who is given judgment, shall recover the damage sustained, together with costs and disbursements, and a peremptory mandamus shall be awarded without delay.  An appeal from the district court shall lie to the court of appeals in mandamus as in other civil cases.


Minn. Stat. § 586.09 (2000) (emphasis added).

            A review of the caselaw reveals that “[h]istorically, there has been little uniformity in the manner in which an aggrieved party has sought review by an appellate court in mandamus proceedings.”  Schiltz v. City of Duluth, 449 N.W.2d 439, 440 (Minn. 1990).

            Early caselaw held that an order directing a peremptory writ of mandamus is appealable.  See State v. Teall, 72 Minn. 37, 39, 74 N.W. 1024, 1024 (1898); State ex rel. Matthews  v. Webber, 31 Minn. 211, 211, 17 N.W. 339, 339 (1883); see also McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn. 1989) (citing State v. Teall in dicta).  But in an opinion following Teall and Webber, the supreme court concluded, after examining the existing caselaw, that the “approved and correct procedure” is to appeal from the judgment or an order denying a motion for a new trial.  State v. McKellar, 92 Minn. 242, 245-46, 99 N.W. 807, 808 (1904).  The court also said that an appeal from an order directing a peremptory writ of mandamus can only be sustained by construing such an order as an “irregular judgment,” which is a practice that “should not be encouraged.”  Id.

            A later opinion cites McKellar and notes that the correct practice is to enter a formal judgment as in ordinary civil actions.  State ex rel. Boldt v. St. Cloud Milk Producers Ass’n, 200 Minn. 1, 4, 273 N.W. 603, 605 (1937).  Nevertheless, the court accepted the appeal as taken from an “irregular judgment.”  Id.

            In a subsequent case, the supreme court noted that in Boldt, the appeal from the order granting the writ of mandamus was accepted as taken from an irregular judgment.  Independent Sch. Dist. of White Bear Lake v. City of White Bear Lake, 208 Minn. 29, 30, 292 N.W. 777, 778 (1940).  But the court also noted that the Boldt opinion points out the correct practice, which is to enter a judgment as in other cases.  Id.  The court concluded that where the writ is allowed, the judgment should so provide, and an appeal, if any, should be from the judgment.  Id., 292 N.W. at 778-79.

            Because Minn. Stat. § 586.09 and the caselaw provide that a judgment should be entered if a writ of mandamus is granted, the proper appeal is from a judgment entered pursuant to the February 6 order.  Generally, an appeal taken from a judgment before its entry is premature.  Schaust v. Town Bd. Of Hollywood Township, 295 Minn. 571, 572, 204 N.W.2d 646, 648 (1973).  But because appellant reasonably relied on caselaw construing an order granting a writ of mandamus as an “irregular judgment,” we will allow this appeal to proceed.  The trial court administrator shall enter a judgment pursuant to the February 6 order.

            Appeal to proceed.