
    No. 35,611
    James Yeager et al., Appellees, v. Mary Yeager et al., Appellants.
    
    (130 P. 2d 547)
    Supplemental opinion filed November 7, 1942.
    
      Charles C. Calkin, of Kingman, argued the cause and was on the briefs for the appellants.
    
      II. E. Walker and T. M. Flick, both of Kingman, were on the briefs for the appellees.
   Supplemental opinion of the court was delivered by

Hoch, J.:

The opinion in this case was filed on October 3, 1942, reversing the judgment with directions to dismiss the action for lack of jurisdiction. To what was then said we add the following statement :

It appears that some time after the appeal to this court had been taken, and soon after our decision in Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438 (referred to and followed in our opinion of October 3), the trial court, on its own motion, entered an order dismissing the action. Such order wras nowhere shown or referred to in the printed record before us, the abstract and briefs apparently having been prepared before the order was made. In oral argument the fact was casually mentioned that such an order had been entered by the trial court. However, appellant pressed his appeal here and appellee did not contest his right to do so. There was no motion to dismiss the appeal.

The general rule, based upon sound reasons, is that where an ap- • pealable judgment or order has been entered, the right of review cannot be cut off by dismissal of the action in the trial court. (St. Paul Fire & Marine Ins. Co. v. Bender, 153 Kan. 752-754, 113 P. 2d 1062, and cases therein cited.) No question as to the applicability of the rule was here raised, and the issue of jurisdiction was considered on its merits. However, we think it only fair to the trial court to note the fact that upon its own motion it had already entered an order of dismissal.  