
    No. 26,760.
    The Drovers and Merchants Bank, Appellant and Appellee, v. E. R. Williamson, Appellee and Appellant.
    
    MEMORANDUM DECISION.
    Appeals from Nemaha district court; C. W. Ryan, judge.
    Memorandum on post-opinion motion asking for modification of mandate and opinion and for direction to the lower court filed November 6, 1926.
    Motion denied.
    
      Bennett R. Wheeler, John L. Hunt, S. M. Brewster, all of Topeka, and; A. L. Guitar, of St. Joseph, Mo., for the appellant.
    
      Rufus Emery, of Seneca, and W. H. Thompson, of Tulsa, Okla., for the appellee.
   The opinion of the court was delivered by

Marshall, J.:

The defendant has asked the court to give directions to the trial court concerning the trial of the fifth cause of action set out in the defendant’s answer and counterclaim. In order to understand the ruling of the court on the motion, it is necessary to quote from the former opinion found in the Drovers and Merchants Bank v. Williamson, 121 Kan. 301, 246 Pac. 676, as follows:

“In this action the plaintiff sued to recover on a promissory note given' to it for 13,500 and interest, signed 'G. W. Fadely Co., by G. W. Fadely.’ The defendant denied liability on the note and set up five separate causes of action on which he asked judgment against the plaintiff. The plaintiff was denied judgment, and judgment was rendered in favor of the defendant for $2,585.70 on his third cause of action against the plaintiff. The case was submitted to a referee to make findings of fact and conclusions of law and report them to the court. The defendant demanded a trial by jury. He appeals from the order refusing him a trial by jury, from the order referring the cause to a referee, and from the refusal of the court to render judgment in his favor of the first, second and fourth causes of action set out in his cross petition. The plaintiff appeals from the judgment rendered against it in favor of the defendant, from the refusal of the court to render judgment for the plaintiff notwithstanding the findings of the referee and of the court, and from the order denying to the plaintiff a new trial. ...
“The defendant’s fifth cause of action was for exemplary damages claimed by him on account of the plaintiff’s conduct described in the first four causes of action alleged by the defendant. . . .
“The defendant at all times insisted on a trial by jury. On the hearing of the motions of the plaintiff and of the defendant for a new trial, the court denied the motion of the plaintiff and denied the motion of the defendant as to his first, second and fourth causes of action, and by consent of all parties continued the cause for trial by jury on the fifth cause of action set out in the defendant’s cross petition.” (pp. 302, 308.)

It should be observed that there was no appeal from any order of the court on the defendant’s fifth cause of action, and that the trial of that cause of action was continued by consent of the parties. Under that consent and the appeals, this court does not, at this time, have any jurisdiction to make any order concerning the trial of the fifth cause of action.

The motion is denied.  