Marshall v. City of Paducah

OPINION AND ORDER Before HAYES, C. J., and WILHOIT and HOGGE, JJ. HAYES, Judge. The City of Paducah has moved this Court to dismiss this appeal because the appellants have failed to appeal from a final and appealable order. The notice of appeal stated the following: Notice is given that Joe Marshall and Amos Wahl, plaintiffs is [sic] this pro [434] ceeding and appellants, hereby appeal to the Court of Appeals of Kentucky from the final Order overruling their motion pursuant to CR 59.05, entered by this Court on October 24, 1980. The name of the appellee against whom this appeal is taken is the City of Paducah, Kentucky, defendant. The appellants argue that an appeal has been taken from a final and appealable order. On December 22, 1978, this Court in the unpublished opinion of James Johnson v. K. A. Cormney, held a similar notice of appeal was valid and denied appellee’s motion to dismiss for failure of the appellant to appeal from a final judgment. Thereafter, the Kentucky Supreme Court published its decision in Foremost Insurance Company v. Shepard, Ky., 588 S.W.2d 468 (1979). This opinion held that an appeal could not be taken from nonfinal orders. An order overruling a motion pursuant to CR 59.05 is a nonfinal order. This Court then published its decisions on the merits in Johnson v. Cormney, Ky.App., 596 S.W.2d 23 (1980). The opinion on the merits discussed the procedural history of the case. However, to the extent the case was not dismissed on procedural grounds, the Johnson case is contrary to the Supreme Court’s opinion in Foremost Insurance Company v. Shepard, supra. Therefore, the Johnson case is hereby overruled. The appellee’s motion to dismiss is GRANTED, and this appeal is hereby DISMISSED. All concur.