Hubbard v. Hubbard
| Decision Date | 26 November 1946 |
| Parties | HUBBARD v. HUBBARD. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Laurel County; Ray C. Lewis, Judge.
Action by Elmer E. Hubbard against Irene Hubbard who filed a plea to the jurisdiction. From an order overruling plea to the jurisdiction, the defendant appeals.
Appeal dismissed.
J Milton Luker, of London, for appellant.
Wm. A Hamm, of London, for appellee.
This appeal was granted from an order overruling the appellant's plea to the jurisdiction of the circuit court.
While the action was pending, and before the issues were made, the appellant, defendant below, interposed a plea to the jurisdiction of the Laurel Circuit Court denying that she was a citizen or resident of Laurel County at the time the petition was filed, and alleging affirmatively that she was and is a citizen and resident of Rockcastle County.
The court heard evidence solely on this question, and after considering the same entered an order sustaining its jurisdiction. Apparently other steps in the action await decision of this court on the jurisdictional question.
We have examined the evidence on which the court rendered its decision and have no hesitation in saying that if we had jurisdiction on this appeal we would affirm the decision. However, at the outset, we are confronted with the question of whether or not the order entered below is a final order from which an appeal lies. This question is not raised by the record, nor is it referred to in the briefs, but jurisdiction may not be waived, and it can not be conferred by consent of the parties. This court must determine for itself whether it has jurisdiction.
Section 368 of the Civil Code of Practice provides that a judgment is a final determination of a right of a party to an action or proceeding, and it is settled that, in the absence of a judgment against parties, questions presented to this court by briefs are not properly before the court. Blackberry Kentucky & West Virginia Coal & Coke Co. v. Kentland Coal & Coke Co., 225 Ky. 346, 8 S.W.2d 425.
This court has no jurisdiction to review orders and judgments unless they are final. Denham v. Town of Wallins, 234 Ky. 626, 28 S.W.2d 965; Happy Coal Co. v. Brashear, 263 Ky. 257, 92 S.W.2d 23; Wolfe County Liquor Dispensary Ass'n v. Ingram, 272 Ky. 38, 113 S.W.2d 839.
In 2 Am.Jur., Appeal and Error, § 23, an interlocutory judgment or decree is defined as
It has been said that if an order entered in a cause does not put an end to the action, but leaves...
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...for itself that jurisdiction is proper." Leonard v. Commonwealth , 279 S.W.3d 151, 155 (Ky. 2009), citing Hubbard v. Hubbard , 303 Ky. 411, 412, 197 S.W.2d 923, 923 (1946) ("This question is not raised by the record, nor is it referred to in the briefs, but jurisdiction may not be waived, a......
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