Summary
In Hodge v. Hodge, 190 Kan. 492, 376 P.2d 822 (1962), the appeal was from the trial court's order of dismissal of the action without prejudice.
Summary of this case from Brower v. BartalOpinion
No. 42,833
Opinion filed December 8, 1962.
SYLLABUS BY THE COURT
APPEAL AND ERROR — Refusing to Change Venue — Action Dismissed Without Prejudice — Not Final Order. In an appeal in a divorce action where the trial court, after refusing to grant a change of venue, ordered the action dismissed without prejudice at the cost of the plaintiff, it is held, no final order was made and the appeal is dismissed. (G.S. 1949, 60-3303.)
Appeal from Sedgwick district court, division No. 2; HOWARD C. KLINE, judge. Opinion filed December 8, 1962. Appeal dismissed.
Clarence R. Sowers and John W. Sowers, both of Wichita, were on the briefs for the appellant.
Clifford H. Pugh and James R. Barr, both of Wichita, were on the briefs for the appellee.
The opinion of the court was delivered by
This is an appeal in a divorce proceedings. In a previous appearance of this case before the supreme court ( Hodge v. Hodge, 186 Kan. 361, 349 P.2d 947) the trial court was affirmed in its order overruling defendant's demurrer to plaintiff's petition.
When our present case was ready for trial in the eighteenth judicial district, Sedgwick county, the assignment judge thereof proceeded to assign the trial of the cause to another judge of that judicial district. Plaintiff's counsel sought a change of venue for the reason that he and the trial judge had had differences and he believed he would not be able to obtain a fair and impartial trial for his client. Counsel requested the assignment judge either to pass the case or assign it to another division of the district court for trial. The assignment judge announced to plaintiff's counsel that the case had been regularly assigned for trial and it should be tried by the judge of the assigned division or the case could be dismissed without prejudice. Plaintiff's counsel orally moved for dismissal of the case without prejudice and it was so dismissed by the assignment judge at the cost of the plaintiff. This appeal was perfected from the trial court's order of dismissal of the action without prejudice.
The record shows another lawsuit was then filed and is now pending between the same parties covering the same subject matter in the same district court.
We have considered the record in its entirety and in our opinion the order appealed from was not a final order under G.S. 1949, 60-3303, and there is nothing here for appellate review.
The appeal, therefore, is dismissed.