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144 Kan. 573

State v. Brown

Supreme Court of Kansas

Decided November 7, 1936

Supreme Court of Kansas · decided 1936-11-07

Key passage — most relied on by later courts

““Counsel for both parties recognize this to be the law, but nevertheless they have joined in a written request for this court to pass upon the question sought to be raised by the plea in abatement, for the reason that the trial would be expensive and would result in a useless waste of time and money if it should be finally held the plea in abatement is good. It is also well settled, as a general rule of law in this state, that parties to an action cannot, by consent, give jurisdiction of a cause to a court which, under our constitution and statutes, has no jurisdiction. (Cohen v. Trowbridge, 6 Kan. 385 ; Phillips v. Thralls, 26 Kan. 780 ; Van Bentham v. Comm’rs of Osage Co., 49 Kan. 30 , 30 Pac. 111 ; Hartzell v. Magee, 60 Kan. 646 , 57 Pac. 502 ; Ewing v. Mallison, 65 Kan. 484 , 70 Pac. 369 ; Samson v. United States Fidelity and Guaranty Co., 131 Kan. 59, 63 , 289 Pac. 427 .)” (p. 573.)”

quoted by 1 later decision, including State v. Hickerson

Relies on Ewing v. Mallison · State v. Rogers · Cohen v. Trowbridge

Good law ✅— No negative treatment on recordhow we know

Decided 1936-11-07

How this case has been cited

Cited by 11 later decisions — most recently May 1966

11 state decisions

401936194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1The opinion of the court was delivered by

Harvey, J.:

¶2In a criminal action the state’s demurrer to defendant’s plea in abatement was sustained, and the defendant has appealed.

¶3It is the settled law in this state that the ruling complained of is not appealable until the final disposition of the case in the trial court. (State v. Coffelt, 66 Kan. 750, 71 Pac. 588; State v. Levine, 125 Kan. 360, 264 Pac. 38; State v. Rogers, 142 Kan. 841, 52 P. 2d 1185.)

¶4Counsel for both parties recognize this to be the law, but nevertheless they have joined in a written request for this court to pass upon the question sought to be raised by the plea in abatement, for the reason that the trial would be expensive and would result in a useless waste of time and money if it should be finally held the plea in abatement is good. It is also well settled, as a general rule of law in this state, that parties to an action cannot, by consent, give jurisdiction of a cause to a court which, under our constitution and statutes, has no jurisdiction. (Cohen v. Trowbridge, 6 Kan. 385; Phillips v. Thralls, 26 Kan. 780; Van Bentham v. Comm’rs of Osage Co., 49 Kan. 30, 30 Pac. 111; Hartzell v. Magee, 60 Kan. 646, 57 Pac. 502; Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369; Samson v. United States Fidelity and Guaranty Co., 131 Kan. 59, 63, 289 Pac. 427.)

¶5What counsel are asking this court to do is simply to give them *574advice upon a question which this court has no jurisdiction at this stage of the proceedings to pass upon. This the court does not care to do.

¶6The appeal is dismissed.

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