Cusintz v. Cusintz, 44165
| Decision Date | 10 July 1965 |
| Docket Number | No. 44165,44165 |
| Citation | 404 P.2d 164,195 Kan. 301 |
| Parties | Nellie P. CUSINTZ, Appellee, v. William J. CUSINTZ, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
An appeal will not lie from an order involving a constitutional question unless the order constitutes a final determination of the constitutional controversy.
David W. Carson, Kansas City, argued the cause, and John K. Dear, Ernest N. Yarnevich, J. W. Mahoney, Joseph T. Carey and John H, Fields, Kansas City, were with him on the briefs for appellant.
Harry Hayward, Kansas City, argued the cause, and Buford E. Braly, Kansas City, was with him on the briefs for appellee.
HATCHER, Commissioner.
This is an appeal from an order refusing to strike an ex parte order granting temporary alimony and child support and from an order denying a motion to dismiss a petition for alimony and child support.
The facts are not in dispute. On September 9, 1964, William Cusintz obtained a decree of absolute divorce from plaintiff in Reno, Nevada. She was served with summons in Wyandotte County, Kansas. On September 15, 1964, she filed suit for temporary and permanent alimony and support of the minor child. She obtained an ex parte order for $50.00 per week for the support and maintenance of her and the minor child, together with attorney fees. On October 1, 1964, defendant filed his answer, setting up the unconstitutionality of K.S.A. 60-1611 and on October 13, 1964, filed his motion to strike and motion to dismiss the petition. On October 16, 1964, the court overruled the motion to dismiss and the motion to strike.
The defendant has appealed.
Before considering the issues raised by appeal we must dispose of a jurisdictional question. An interim motion to dismiss the appeal was denied because the court did not feel that the issues before it were sufficiently clarified for such determination. The issues have now been fully briefed and the matter is before us for consideration.
The appellee suggests that the orders from which the appeal is taken are not final and therefore they are not appealable. K.S.A. 60-2102 provides in part:
'(a) As of right. The appellate jurisdiction of the supreme court may be invoked by appeal as a matter of right from: * * *
(4) A final decision in any action, * * *.'
A final order from which an appeal will lie is one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court. (Connell v. State Highway Commission, 192 Kan. 371, 388 P.2d 637.) An order overruling a motion to dismiss an action is not a final or appealable order. (Wichita Chamber of Commerce v. State Corporation Commission, 179 Kan. 386, 295 P.2d 670; Johnston v. State of Kansas Employment Security Board of Review, 189 Kan. 327, 369 P.2d 394; Donaldson v. State Highway Commission, 189 Kan. 483, 370 P.2d 83.)
The appellant does not seriously contend...
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Honeycutt By and Through Phillips v. City of Wichita
...the future or further action of the court.' Bates & Son Construction Co. v. Berry, [217 Kan. 322, 324, 537 P.2d 189]; Cusintz v. Cusintz, 195 Kan. 301, 302, 404 P.2d 164. See also, Connell v. State Highway Commission, 192 Kan. 371, 388 P.2d 637." See 6 Vernon's Kansas C.Civ.Proc. § 60-2102,......
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Harsch v. Miller
...P.2d 223 (1966) ("An order overruling a motion to dismiss an action is not a final or appealable order") (quoting Cusintz v. Cusintz, 195 Kan. 301, 302, 404 P.2d 164 [1965]). Clearly, the Harsches also never made any attempt to take the safer approach to ascertain the legitimacy of their ap......
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Snodgrass v. State Farm Mut. Auto. Ins. Co.
...entire merits of the controversy, and reserves no further questions or directions for the future or further action: Cusintz v. Cusintz, 1965, 195 Kan. 301, 302, 404 P.2d 164. With the exception of the rare instances for interlocutory appeal provided by K.S.A. 60-2102(b), intermediate and pi......
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Oertel v. Phillips
...and appealable it must be such as would result in the final determination of the action. A final order was defined in Cusintz v. Cusintz, 195 Kan. 301, 404 P.2d 164, where it was said: 'A final order from which an appeal will lie is one which finally decides and disposes of the entire merit......