Campbell v. Daugherty

• Decision Date: 17 May 1935
• Citation: 259 Ky. 372,82 S.W.2d 460
• Parties: CAMPBELL v. DAUGHERTY et al.
• Court: Kentucky Court of Appeals

82 S.W.2d 460

259 Ky. 372

CAMPBELL v. DAUGHERTY et al.

Court of Appeals of Kentucky

May 17, 1935

Appeal from Circuit Court, Mercer County.

Proceeding between T. O. Campbell and S. K. Daugherty, etc., and another for a declaratory judgment. The trial court sustained a demurrer to the petition and made a declaration of rights, and T. O. Campbell appeals.

Appeal dismissed.

J. W. Harlan, E. C. Newlin, Jr., both of Danville, and Bailey P. Wootton, Atty. Gen., and S. H. Brown, Asst. Atty. Gen., for appellant.

C. E. Rankin and I. C. James, both of Harrodsburg, and E. V. Puryear, of Danville, for appellees.

STITES, Justice.

This is a proceeding for a declaratory judgment, together with other incidental relief. The trial court sustained a demurrer to the petition and then proceeded to make a declaration of rights. The plaintiff did not decline to plead further, nor was the petition dismissed. The ruling of the trial court, therefore, was purely interlocutory, and not final, and this court is without jurisdiction to entertain the appeal. Kentucky Stats. § 950-1. Webb v. Kersey, 255 Ky. 217, 73 S.W.2d 4; Williams v. Howard, 192 Ky. 356, 233 S.W. 753; Harrison v. Stroud, 150 Ky. 797, 150 S.W. 993; Trade Discount Co. v. J. R. Cox & Co., 143 Ky. 515, 136 S.W. 901; Bennett v. City of Louisville, 62 S.W. 1041, 23 Ky. Law Rep. 373; Alexander v. De Kermel, 81 Ky. 345, 5 Ky. Law Rep. 382; Ferguson v. Mason, 50 S.W. 15, 20 Ky. Law Rep. 1702; Commonwealth v. Louisville & N. R. Co., 29 S.W. 331, 16 Ky. Law Rep. 484.

Moreover, grave public questions are involved, vitally affecting numerous persons not before the court. Under the power given us by section 6 of the Declaratory Judgment Statute (Civ. Code, Prac. § 639a--6) to remand a case for further pleadings or proof where, in our judgment, they are necessary to a final and correct decision of the matters involved, we would be compelled to remand this case, as now presented, even if it were legally before us.

Since we are without jurisdiction of the appeal, we could not accept the invitation of appellees to proceed with a declaration of rights, even though we determined that the case presented was a proper one for declaratory relief.

The appeal is dismissed.

Whole court sitting.