
    No. 33,436
    Henry Heiman and Rosa Heiman, Appellees, v. The State Highway Commission of the State of Kansas, Appellant.
    
    (69 P. 2d 685)
    Opinion filed July 10, 1937.
    
      Lester M. Goodell, assistant attorney general, Robert Osborn, of Stockton, and Ralph H. Noah, of Beloit, for the appellant.
    
      Leon W. Lundblade and L. A. Willett, both of Beloit, for the. appellees.
   The opinion of the court was delivered by

Thiele, J.:

The state highway commission commenced proceedings to condemn lands for its purposes. From the award of the appraisers the landowners appealed to the district court, giving a bond to which no immediate objection was made. The appeal was tried and an award made by the jury. Thereafter, the highway commission filed two motions: one to dismiss the appeal for the reason the landowners had not given a bond conditioned as required by statute, the other for a new trial. The trial court denied the motion to dismiss and allowed the motion for a new trial. The highway commission appeals to the court from the order of the trial court overruling its motion to dismiss the appeal of the landowners to the district court.

The appellees question the right of the highway commission to maintain this appeal for the reason the order appealed from is not a final order. The point is well taken.

In Edwards v. City of Neodesha, 110 Kan. 492, 204 Pac. 708, the city moved the district court to dismiss an appeal from an award made in a condemnation proceedings, and from an adverse ruling attempted to appeal to this court. It was held that an order denying a motion to dismiss was not a final order, and was not appeal-able. See the cases cited in the above opinion, and also Clothier v. Wallace, 135 Kan. 347, 10 P. 2d 889, and Marsol Credit Co. v. Blacker, 144 Kan. 632, 62 P. 2d 914, holding to the same effect but with reference to motions in the district court to dismiss appeals from probate and justice of the peace courts.

Following the holdings of the above decisions, the present appeal must be dismissed, the dismissal, however, not to be construed as adjudicating in any manner the matters sought to be raised by the appeal.

The appeal is dismissed.  