28 S.W.2d 965 | Ky. Ct. App. | 1930
Dismissing appeal.
The appellee and defendant below, Town of Wallins, in Harlan county, is a city of the sixth class. The appellant and plaintiff below, N.R. Denham, filed this ordinary action against it in the Harlan circuit court seeking to recover from it $826.75, in payment of alleged services rendered it by plaintiff as civil engineer in the construction of designated public improvements by the city. On November 20, 1929, there was a default judgment rendered against defendant for the full amount claimed in the petition, and on December 17, being a continuation of the same term at which the judgment was rendered, a motion was made by attorney for defendant to set it aside, and which the court sustained four days thereafter and set aside the default judgment, to which plaintiff objected and excepted, and from which he has prosecuted this appeal to this court.
Neither party refers to or raises the first and most material question presented, i. e., this court's jurisdiction *627
to entertain the appeal. It is clearly settled, and we need not cite opinions or texts in support of it, that appellate courts have no jurisdiction to review the orders and judgments of inferior ones, unless they are final and put an end to the litigation, or to the particular point determined. If, therefore, the order appealed from in this case is not such a final one, then we have no jurisdiction to entertain this appeal. In the cases from this court of Miller v. Ashcraft,
The only exception to the rule that no appeal lies to this court from an order granting a new trial is where the order is obtained in an independent proceeding filed and taken subsequent to the term at which the judgment was rendered pursuant to the provisions of sections 344 or 518 of the Civil Code of Practice, since the order granting or refusing a new trial, made and entered in *628
such independent proceeding for that purpose, is a final order from which an appeal will lie to this court, and which has been held in a number of cases, among which are the Davidson case, supra; Asher v. Cornett,
Wherefore, for the reasons stated, the appeal is dismissed.