Hodge v. Hodge

190 Kan. 492 (1962)

376 P.2d 822

ROSELLA HODGE, Appellant, v. RAY HODGE, Appellee.

No. 42,833

Supreme Court of Kansas.

Opinion filed December 8, 1962.

Clarence R. Sowers and John W. Sowers, both of Wichita, were on the briefs for the appellant.

Clifford H. Pugh and James R. Barr, both of Wichita, were on the briefs for the appellee.

The opinion of the court was delivered by

ROBB, J.:

This is an appeal in a divorce proceedings. In a previous appearance of this case before the supreme court (Hodge v. Hodge, 186 Kan. 361, 349 P.2d 947) the trial court was affirmed in its order overruling defendant's demurrer to plaintiff's petition.

When our present case was ready for trial in the eighteenth judicial district, Sedgwick county, the assignment judge thereof proceeded to assign the trial of the cause to another judge of that judicial district. Plaintiff's counsel sought a change of venue for the reason that he and the trial judge had had differences and he believed he would not be able to obtain a fair and impartial trial for his client. Counsel requested the assignment judge either to pass the case or assign it to another division of the district court for trial. The assignment judge announced to plaintiff's counsel that the case had been regularly assigned for trial and it should be tried by the judge of the assigned division or the case could be dismissed without prejudice. Plaintiff's counsel orally moved for dismissal of the *493 case without prejudice and it was so dismissed by the assignment judge at the cost of the plaintiff. This appeal was perfected from the trial court's order of dismissal of the action without prejudice.

The record shows another lawsuit was then filed and is now pending between the same parties covering the same subject matter in the same district court.

We have considered the record in its entirety and in our opinion the order appealed from was not a final order under G.S. 1949, 60-3303, and there is nothing here for appellate review.

The appeal, therefore, is dismissed.