(concurring specially) : The order of the trial court in sustaining the motion of the county board and vacating the judgment entered in favor of Shurtleff by confession of the county attorney, without any express authority from the board of county commissioners, in a proceeding upon appeal in which Shurtleff was not a party, if reviewable by this court *651in this present proceeding, was eminently correct and should be affirmed ; hence, I concur in the conclusion reached by the court upon a review of the case. However, in my opinion, the proper order to be made by this court in this proceeding is an order of dismissal for want of jurisdiction, and not the order of ■affirmance made.
The order of the trial court complained of is an order setting aside a judgment entered upon confession by the county attorney without trial. In the entry of this judgment no issue of law or fact was tendered to the trial court for determination, and it determined none. That such an order is not subject to review in this court, under the provisions of our code, until final judgment in the action or proceeding in which it is made, seems, to my mind, to be not only clearly apparent from the provisions of the code conferring jurisdiction on this court to review the proceedings of a district court in civil cases, but also to be conclusively settled, at least in principle, by the decisions of this court.
The code, section 542 (Gen. Stat. 1901, §5019), provides :
“The supreme court may reverse, vacate and modify a judgment of the district court . . . for errors appearing on the record; and in the reversal of such judgment or order may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof. The supreme court may also reverse, vacate or modify any of the following orders of the district court . . . or a judge thereof . . . : 1. A final order. 2. An order that grants or refuses a continuance ; discharges, vacates or modifies a provisional remedy; or grants, refuses, vacates or modifies an injunction ; that grants or refuses a new trial; or that confirms or refuses fo confirm the report of a *652referee, or that sustains or overrules a demurrer. 3. An order that involves the merits of an action, or some part thereof. . . . ”
In McCulloch v. Dodge, 8 Kan. 477, this court held:
“An order of the district court setting aside a judgment rendered on a default and allowing the defendants to answer to the petition of the plaintiffs is not such an order as may be reviewed by the supreme-court while the suit is still pending in the district court.”
In Kermeyer v. K. P. Rly. Co., 18 Kan. 215, it was held:
“An order of the district court vacating a judgment rendered on a default is not such an order as may be reviewed by the supreme court, while the suit is still pending in the district court.”
In Flint v. Noyes, 27 Kan. 351, it was held :
“As the order of the district court simply opened up the judgment and the default, and allowed the defendant to answer so that the merits of the case might be heard and considered, and the case disjjosed of upon its merits, such order is not reviewable by this court.”
In List v. Jockheck, 45 Kan. 349, 27 Pac. 184, it was held:
“Where, under ®j[ ¶ 4669 and 4671 of the General Statutes of 1889, a petition is filed to vacate a judgment, and the court makes an order vacating the judgment temporarily, such order is not final, and error will not lie therefrom.”
•If the judgment in this case was voidable for irregularity in obtaining the same, it was properly vacated upon motion, under clause 3 of section 5054, General Statutes of 1901, and the above decision is controlling. If absolutely void, as determined by the foregoing opinion, the same was properly vacated upon motion *653at any time. In no event will error lie to this court to review this order until a final determination of the case in the district court. The proceeding in error should be dismissed.