Cooper v. Clark , 183 Ky. 492 ( 1919 )

Opinion op the Court by

William Rogers Clay, Commissioner

Dismissing the appeal.

On July 26, 1917, plaintiffs, R. H. Cooper, and D. H. Hatcher, "brought this suit against the defendants, T. N. Clark and the Omar Oil & Gas Company, to recover rentals in the sum of $1,000.00 on leases, which they had assigned to defendants, and damages in the sum of $18,691.00 for a failure to comply with certain terms of the contract, and also the further sum of $30,000.00, the cost of drilling wells according to the contract. On. August 6th following, Messrs. Cline & Steele appeared as attorneys for the defendants and filed a demurrer to the petition. The next regular term of the Pike .circuit court following the filing of the demurrer began on September 10th. .On September 15th, the demurrer was overruled. On the same day, plaintiffs filed an amended petition and defendants insisted on the demurrer to the petition as amended. On September 18th, an order was entered overruling the demurrer to the petition as amended. On September 19th, plaintiffs made a motion to have the allegations of the petition and the amended petition taken as true. The defendants objected and were given until September 24th to file an answer. ¡On September 28th, an order was entered, giving the defendants until October 6th to prepare and file their answer, and providing that if the-answer was not filed by that time, the allegations of the petition as amended should be taken as true. No answers were filed on October 6th, and judgment was rendered in favor of plaintiffs for the amounts sued for.

On October 10th, and at the same term, defendants appeared by counsel and filed a motion and grounds for setting aside the jitdgment, and filed in support thereof the affidavit of counsel. The court, deeming the grounds sufficient, entered an order setting aside the judgment theretofore entered and permitting the defendants to file their answers. From this order plaintiffs appeal.

It will be observed-that the appeal is prosecuted from an order setting aside a judgment in term time, and permitting the defendants to answer. It is well settled that such an order is not a final order from which an appeal will lie. Darby v. French, 112 S. W. 1132, 3 C. J., sec. 336, 2 R. C. L., sec. 27, p. 44.

Appeal dismissed.