March 20, 1964.
Appeal from the County Court, Perry County, J.A. Smith, J.
D.G. Boleyn, Hazard, for appellants.
Don A. Ward, Hazard, for appellees.
This appeal is premature and therefore dismissed and the case remanded to the Perry County Court for further proceedings there for the reason that there has been no judgment in the Perry County Court as required by CR 54.01. See also Brumley v. Lewis, Ky., 340 S.W.2d 599, wherein the test of appealability was said to be "whether the order grants or denies the ultimate relief sought in the action or requires further steps to be taken in order that the parties' rights may be finally determined."
This is an action started in the Perry County Court to partition real estate. KRS 381.135(1), (12). An order was entered finding that the land could be partitioned in kind.
Three commissioners were appointed but they failed to act and three others were appointed and one of those failed to act and another was appointed. The last three partitioned the land and filed a report and map which was excepted to and the County Judge hearing the evidence on exceptions sustained the exceptions and set aside the commissioners' report. The attempted appeal is from the order setting aside the commissioners' report. Clearly this is not a "final order adjudicating all the rights of all the parties" as required by CR 54.01. It is possible to partition land in many different ways, but in this case no partition has yet been made or denied, except the particular partition appellants favor has been denied.
We recommend that the appeal be dismissed and the cause remanded to the Perry County Court for further proceedings.
The opinion is approved by the court. The appeal is dismissed and the cause remanded to the Perry County Court.