Kermeyer v. Kansas Pacific Rly. Co.

The opinion of the court was delivered by

This action was commenced in the district coiirt of Leavenworth county on June 29th 1875, during the May term of said court. The defendant failed to answer, or demur, or to make any other appearance in the . case during that term. On August 30th, the May term still being in session, a judge pro. tern, of said court was elected —the regular judge being absent — and the plaintiff obtained a judgment by default against the defendant. On the first Monday of September 1875 a new term of the district court was commenced. On October 16th, during said September term, the defendant made a motion to vacate said judgment, and on October 23d, during said September term, said motion was sustained. The plaintiff immediately made a case for the *216supreme court, and afterward brought the case to this court. No other proceedings appear to have been had in the.district court. The plaintiff now claims that the court below erred in setting aside and vacating said judgment. This is the only ruling of the court below complained of. The first question arising in the case is, whether this ruling of the court below is at this time reviewable. This exact question, arising in another case, has already been decided in this court. In the case of MoCulloch v. Dodge, 8 Kas. 476, it was held that “an order of the district court setting aside a judgment rendered on a default, and allowing the defendant to answer to the petition of the plaintiffs, is not such an order as may be reviewed by the supreme court while the suit is still pending in the district court.” We do not think that the order vacating the judgment in the present case is reviewable at the present time. The case is still pending in the district court, so far as the record brought to this court shows. The petition in error in this case will be dismissed. '