Maichel v. Coleman , 167 Kan. 93 ( 1949 )

The opinion of the court was delivered by

Wedell, J.:

This is an appeal from an order of the district court overruling a motion filed by the administrator of a decedent’s estate, in his official capacity and as an heir, to dismiss an appeal of other heirs from the judgment of the probate court. The appeal was from the judgment of the probate court allowing expenses of administration including attorney’s fees.

An order sustaining a motion to dismiss an action is a final and appealable order. An order overruling a motion to dismiss an action is not a final order and prior to final judgment is not appeal-able. (Pulliam v. Pulliam, 163 Kan. 497, 499, 188 P. 2d 220; Runnels v. Montgomery Ward & Co., 165 Kan. 571, 573, 195 P. 2d 571; Singleton v. State Highway Comm., 166 Kan. 406, 201 P. 2d 650; Kansas State Highway Comm. v. Moore, 166 Kan. 408, 201 P. 2d 652.) Likewise an order of the district court overruling a motion to dismiss an appeal from the probate court is nonappealable. (In re Estate of Grindrod, 158 Kan. 345, 148 P. 2d 278.)

It follows this court has acquired no jurisdiction by virtue of the attempted appeal and the appeal must be dismissed. It is so ordered.