59 Kan. 719 | Kan. | 1898
This was a proceeding by D. M. Tip-ton, who had an unsatisfied judgment against D. W. and Lou K. McCalla, to subject certain real property to the payment of the judgment. It was alleged that
At the trial it was found and adjudged that the McOallas were the owners of the property, and judgment was rendered subjecting it to the payment of the judgment. The cause was taken to the Court of Appeals for review, and that co.urt reversed the judgment of the district court, and directed the trial court to give judgment in favor of the McCallas. McCalla v. Dougherty et al., 4 Kan. App. 410, 46 Pac. 30.
For the purpose of reviewing the judgment of the Court of Appeals this proceeding in error is instituted. The defendants in error challenge the jurisdiction of this court in a motion to dismiss, claiming that the action does not involve title to real estate within the meaning of section 14, chapter 96, Laws of 1895. That provision limits and defines when proceedings in error may be taken from a judgment of the Court of Appeals as a matter of right, and authorizes review ‘ ‘ in any case involving .... the title to real estate,’- etc. Unless therefore this proceeding can be said to involve the title to real estate the Supreme Court is without jurisdiction.
The main purpose of the suit is to obtain satisfaction of the judgment, and to accomplish this it is sought to have the real estate subjected to its payment. The .title to the land sought to be subjected is
Attention is called to the holding of one .of the justices of this court when a petition was filed for discretionary certification, that the case was' appealable as a matter of right. That was an ex parte application and an appeal to the exceptional judicial discretion of the court; and a ruling made in such case, when the record in the case and all the parties thereto were not before the judge or the court, is not deemed to have binding force and effect.
The proceeding in error will be dismissed.