O'Nan v. Broadus , 316 S.W.2d 220 ( 1958 )

MILLIKEN, Judge.

In this action, M. T. O’Nan has requested an order of this Court prohibiting the Hon. George Broadus, Special Judge of the Jefferson Circuit Court, from entering a supplemental order or judgment in an action by M. T. O’Nan against Faye Brady O’Nan.

The action between the O’Nans involved rights under a contract, and included a counterclaim by Faye Brady O’Nan against M. T. O’Nan. On December 26, 1957, the respondent, the Hon. George Broadus, entered an order adjudging the amount due M. T. O’Nan under the contract, but failed to dispose of the counterclaim. A notice of appeal to this Court was filed the next day, and the appeal was dismissed April 18, 1958. The order or judgment of December 26, 1957, obviously does- not dispose of the whole case, and does not include the required stipulation that it is a final judgment as to part of the controversy and that there was no just reason for delay in granting such a final judgment. CR 54.02. As a consequence, the Circuit Court’s action of December 26, 1957, was not appeal-able, so the notice of appeal filed the next day did not remove the jurisdiction of the case from that Court.

We conclude, therefore, that the respondent, Hon. George Broadus, acted within the authority of his office in entering the supplemental order or judgment complained about in the present action. See, Schaetzley v. Wright, Ky., 271 S.W. 2d 885; Turner Construction Company v. Smith Brothers, Inc., Ky., 295 S.W.2d 569; Cornett v. Wilder, Ky., 307 S.W.2d 752; Jessup v. Bard, Ky., 314 S.W.2d 524; and Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297.

The request for an order prohibiting Hon. George Broadus from entering the proposed judgment is denied.