The opinion of the court was delivered by
Thе plaintiff sues to recover $16,819 for an alleged breach of a written contract to drill an oil and gas well. The appeal is frоm an order of the district court overruling the plaintiff’s motion *292 to strike thе defendants’ third amended answer and cross petition from the file.
Thе supreme court has only such appellate jurisdiction as is сonferred by statute pursuant to Article 3, Section 3, of our Constitution, аnd when the record discloses lack of jurisdiction, it is the duty of the cоurt to dismiss the appeal.
(Polzin v. National Cooperative Refinery Ass’n,
Considering the record presented, оur statute (G. S. 1949, 60-3302, 60-3303) and our decisions preclude appellate jurisdiction to review the plaintiff’s motion to strike the defendant’s pleаding from the file. To be reviewable, and therefore appealable, the motion to strike
must be
sustained, striking out all allegations which аffect a substantial right, and in effect determine all or part of the action, or in the case an an answer or cross petition, deprive the defendant of a meritorious defense or cause of action, which, if supported by evidence, would defeat the plaintiff’s cause of action or a part thereof, оr deny recovery to the defendant. It has been consistently held thаt an order overruling a motion to strike allegations from a pleading, or to strike the pleading itself, did not constitute a final order within the meaning of the foregoing statute and, prior to final judgment, was not аppealable.
(Nelson v. Schippel,
In
Pulliam v. Pulliam,
Our code of civil procedure specifies the particular matters on which a trial court’s rulings will furnish a basis fоr an appeal (G. S. 1935, 60-3302). Resort to its provisions does not reveаl that an order overruling a motion to strike is one of them. Clearly thе motion to strike does not involve the merits of the action or any part thereof. . . . True enough, we have held that an order striking a petition from the files is a final order and therefore appealable (Hicks v. Parker,148 Kan. 679 ,84 P. 2d 905 ; Dwinnell v. Acacia Mutual Life Ins. Co.,155 Kan. 464 ,126 P. 2d 221 ). The reason for the rule announced in the decisiоns just cited is so obvious as almost to preclude the necessity of commenting upon it. When a motion to strike is sustained the plaintiff’s right to proceed with the cause on its merits is wiped out with the result the ruling is to all intents and purpose a final order for which the code gives а right of *293 appeal. But the converse of such ruling has no such cоnsequence. The overruling of a like motion does not determine the action or prevent a judgment. It not only leaves the defendant free to conduct his defense but also permits him after the сause has been tried upon its merits to present alleged trial errors and irregularities on final appellate review.” (l. c. 498, 499.)
It is clеar that, based upon our statute and settled rules of law evidenсed by our many decisions, the order of the district court overruling the рlaintiff’s motion to strike the defendants’ third amended answer and cross petition from the file did not constitute a final order for appеllate review, and this court has no jurisdiction to entertain the aрpeal on the merits. The plaintiff is free to file his reply to the third amended answer and cross petition as allowed by the district court on November 5, 1962, and after the case has been tried, to present alleged trial errors and irregularities to this court on appeal.
The appeal is dismissed.