Opinion
December 16, 1955.
Appeal from the Trial Court, Holland G. Bryan, J.
Lloyd C. Emery, Percy H. Green, W.A. Middleton, Paducah, for appellant.
John T. Garrett, C.A. Wickliffe, Paducah, for appellee.
The sole question involved in this appeal is whether the order of the lower court overruling a motion for summary judgment is appealable.
At the time of his death, intestate, O.E. Watkins owned jointly with his wife, Tora Watkins, one of the appellees, a small house and lot in Paducah, Kentucky. He was survived by his widow and four children as his heirs at law, who inherited the decedent's undivided one-half interest in the land, subject to their mother's right to dower or homestead.
Fairrie Battoe, a joint owner, and her husband, appellants, filed this action against the widow and other joint owners under KRS 389.020, formerly Civil Code Section 490, seeking a sale of the real estate on the ground of indivisibility. The widow, by answer and cross-complaint, asked that she be allotted a homestead in the undivided one-half interest of the land formerly owned by her husband. Appellants filed a reply denying the right to the relief sought by the widow and then filed an amended complaint, seeking compensation in the sum of $5,000 for services rendered the decedent and the further sum of $500 for expenses incurred in performance of the services. The widow and one daughter, by separate answer, denied appellants' right to the relief sought by the amended complaint. No answer was filed by the other two heirs, and default judgment was taken as to them.
Proof was taken by deposition as to the services rendered by appellants, and a request for admissions under CR 36.01 was unanswered. Appellants filed a motion for summary judgment, supported by affidavits. The trial court overruled the motion. The appeal is taken from that order.
An order overruling a motion for summary judgment is an interlocutory order. Since it is not a final order, it is not appealable. For further discussion, see Bell v. Harmon, Ky., 284 S.W.2d 812; Atlantic Company v. Citizens Ice Cold Storage Co., 5 Cir., 1949, 178 F.2d 453.
Appeal dismissed.