E. Smith v. Wm. Rodes et al., Rockcastle, 1867

E. Smith v. Wm. Rodes et al.

COURT OF APPEALS OF KENTUCKY

2 Ky. Op. 28; 1867 Ky. LEXIS 381

October 3, 1867, Decided

PRIOR HISTORY:   [*1]  APPEAL FROM ROCKCASTLE CIRCUIT COURT.

DISPOSITION: Appeal dismissed.

COUNSEL: Turner, for appellant.

Beeman, for appellee.

JUDGES: Judge Hardin.

OPINION BY: Hardin

OPINION

Opinion of the Court by Judge Hardin:

The order directing that the case be "filed away until the further order of the court" was not, in our opinion, a final order, as equivalent to a dismissal of the action. It is however insisted for the appellant that the subsequent order of the Court overruling the plaintiff's motion to reinstate the cause on the docket was constructively a judgment dismissing the action from which an appeal may be prosecuted by this court. But we do not so construe the action of the court, which, in our opinion, did not constitute a final judgment, revisable in this Court, but amounted only to a non-suit, reserving to the plaintiff the right to prosecute his claim by another action.

As from this view it results that this court has no jurisdiction of the subject of this appeal, the appeal is dismissed.