dissenting: This appeal was perfected on December 23,1960. The notice specified it was from an order entered December 5, 1960, overruling the defendant’s demurrer to the supplemental amended petition, and also from orders of September 28, 1960, overruling the defendant’s motions to dismiss the action and to strike a paragraph from the supplemental amended petition.
The court is dismissing the appeal because it was not timely perfected.
The decision is based upon the conclusion that the motions to dismiss and to strike were “equivalent” to demurrers and the orders overruling them on September 28, 1960, were final appealable orders, and that the subsequent filing of the demurrer *187asked the court to re-examine the same question of law as presented by the motions and, although expressly made appealable by statute, the order of December 5, 1960, did not extend the time for the defendant to perfect an appeal, hence the attempted appeal on December 23, 1960, was not timely perfected.
In my opinion the court’s decision is erroneous for several reasons. In the first place, as hereafter noted, it is in conflict with well-settled rules of appellate procedure based upon statutory laws and decisions of this court construing them. In the second place, it creates confusion and delay in the administration of justice. Doubt and uncertainty will result to the Bench and Bar as to when an order overruling a motion to dismiss an action, or to strike from a petition or answer, is a final appealable order, and when and under what circumstances the court will or will not “construe” such motions to be “equivalent” or “tantamount” to a demurrer so as to be an appealable order. The court is not only inviting litigants to appeal from all orders overruling their motions to dismiss or to strike, but the decision requires that appeals must necessarily be perfected to protect their rights, which will produce a cluttered state of the docket of this court, and result in the trial of litigants’ cases “piecemeal” in the district court.
Were the court to follow established rules of procedure in deciding this case, it would entertain the appeal and reverse the judgment for the following reasons:
Under G. S. 1949, 60-3302, provision is made for appeal to this court under four classifications, only two of which are here involved — “First, a final order. Second, an order . . . that sustains or overrules a demurrer.” Under G. S. 1949, 60-3303, a final order is defined as one which affects a substantial right in an action and in effect determines the action and prevents a judgment. A demurrer is a pleading (G. S. 1949, 60-703), while a motion is not (G. S. 1949, 60-720; Dole Irrigation Supply v. Knackstedt, 186 Kan. 143, 348 P. 2d 602), and the appealability of orders disposing of them materially differs. An order made with respect to the former, either sustaining or overruling it, is expressly made appealable. But not so with respect to orders concerning motions to dismiss an action or to strike from a pleading. To be appealable, they must be “final orders” as defined in G. S. 1949, 60-3303.
It is unnecessary to review all of our cases dealing with motions to dismiss an action, but it may be said it has been uniformly held *188that an order of the district court overruling a defendant’s motion to dismiss an action is not a final order and, prior to final judgment, is not appealable. On the other hand, an order which sustains such a motion is a final order as defined in 60-3303, and is appealable. Such an order speaks with finality. It ends the proceeding. In Runnels v. Montgomery Ward & Co., 165 Kan. 571, 195 P. 2d 571, it was held:
“An order overruling a motion to dismiss an action does not constitute a final order within the meaning of G. S. 1935, 60-3302; 60-3303 and, prior to final judgment, is not appealable.” (Syl. f 2.)
And in Maichel v. Coleman, 167 Kan. 93, 204 P. 2d 731, it was said:
“An order sustaining a motion to dismiss an action is a final and appealable order. An order overruling a motion to dismiss an action is not a final order and prior to final judgment is not appealable. (Pulliam v. Pulliam, 163 Kan. 497, 499, 188 P. 2d 220; Runnels v. Montgomery Ward & Co., 165 Kan. 571, 573, 195 P. 2d 571; Singleton v. State Highway Comm., 166 Kan. 406, 201 P. 2d 650; Kansas State Highway Comm. v. Moore, 166 Kan. 408, 201 P. 2d 652.) (l. c. 93.)
To the same effect are In re Estate of Grindrod, 158 Kan. 345, 148 P. 2d 278; In re Estate of West, 167 Kan. 94, 95, 204 P. 2d 729; Cities Service Gas Co. v. Krehbiel, 168 Kan. 69, 70, 211 P. 2d 68; In re Estate of Hilliard, 170 Kan. 617, 619, 228 P. 2d 536, and Western Light & Telephone Co. v. Toland, 177 Kan. 194, 195, 277 P. 2d 584.
The rule is equally well settled with respect to the appealability of motions to strike. To be reviewable, and therefore appealable, they must be sustained, striking out allegations which affect a substantial right, and in effect determine all or a part of the action, or in case of an answer, deprive the defendant of a meritorious defense, which, if supported by evidence, would defeat the plaintiff’s cause of action or a part thereof. (Nelson v. Schippel, 143 Kan. 546, 547, 56 P. 2d 469; Nausley v. Nausley, 181 Kan. 543, 545, 313 P. 2d 302; Fernco, Inc., v. Kennedy, 181 Kan. 25, 30, 309 P. 2d 400; Farran v. Peterson, 181 Kan. 145, 147, 309 P. 2d 677; Marshall v. Duncan, 182 Kan. 540, 543, 544, 322 P. 2d 762; Lee v. Johnson, 186 Kan. 460, 350 P. 2d 772; Hodge v. Freeman, 187 Kan. 650, 653, 359 P. 2d 845; Schauf v. Peter Kiewit & Sons Co., 187 Kan. 180, 182, 354 P. 2d 687.) But all orders sustaining motions to strike are not final appealable orders since they do not all affect a substantial right, or determine all or a part of a suit. (Runnels v. Montgomery *189Ward & Co., supra: Maichel v. Coleman, supra; Krey v. Schmidt, 170 Kan. 86, 90, 223 P. 2d 1015; Marel v. City of Tonganoxie, 183 Kan. 102, 325 P. 2d 51; Kelly v. Nelson, 184 Kan. 803, 339 P. 2d 64; Lee v. Johnson, supra; Taylor v. Hostetler, 186 Kan. 788, 352 P. 2d 1042.)
It has been consistently held that an order overruling a motion to strike allegations from a pleading did not constitute a final order within the meaning of G. S. 1949, 60-3302 and 60-3303, and, prior to final judgment, was not appealable. (Barnhouse v. Rowe, 178 Kan. 248, 252, 284 P. 2d 618, Syl. ¶ 2; Nelson v. Schippel, supra; Nausley v. Nausley, supra; Fernco, Inc., v. Kennedy, supra; Farran v. Peterson, supra; Marshall v. Duncan, supra; Lee v. Johnson, supra; Hodge v. Freeman, supra; Schauf v. Peter Kiewit & Sons Co., supra.) And there are many other decisions to the same effect. However, three cases hold otherwise: One is In re Estate of Shirk, 188 Kan. 513, 363 P. 2d 461, cited in the majority opinion, which involved the overruling of separate motions to strike affirmative defenses on the ground they were insufficient in law to state a defense. The other two are Wright v. Rogers, 167 Kan. 297, 205 P. 2d 1010, and Collins v. Richardson, 171 Kan. 152, 230 P. 2d 1018. The appeal in each of those cases was from an order overruling a motion to dismiss the action for the reason the district court had no jurisdiction to hear and determine the case. It was pointed out in the Wright case, notwithstanding the rule that orders overruling motions to dismiss are not ordinarily final orders and therefore not appealable (G. S. 1949, 60-3302), that since counsel and the court below treated the motion as “tantamount” to a demurrer, this court on appeal would regard it as equivalent to an order overruling a demurrer (G. S. 1949, 60-705, First), and considered the case on its merits. Apparently the court overlooked the rule that jurisdiction of the subject matter cannot be given by consent. In the Collins case it was stated that the “motion raises a question of the jurisdiction of the court the same as a demurrer would have done under G. S. 1949, 60-705, First,” and the appeal was decided on the merits. It was further stated that there were “three” other plaintiffs in the action pending below and this court said, “There certainly is no reason as to them why the action should be dismissed.” While cognizant of those decisions, I do not think they are sound because they permit the court on appellate review to “construe” a particular *190motion to strike or to dismiss and determine for itself whether it is or is not an appealable order rather than to determine the question in accordance with the statute and our decisions construing them.
Some of our decisions contain statements that for an order striking certain allegations from a petition to be appealable it must amount to the sustaining of a demurrer (Fox v. Ryan, 121 Kan. 172, 246 Pac. 520; Wigton v. Donnelly, 122 Kan. 796, 253 Pac. 400; Redfield v. Chelsea Coal Co., 138 Kan. 373, 26 P. 2d 579; Estes v. Tobin Construction Co., 155 Kan. 564, 565, 127 P. 2d 720), and that an order sustaining a motion to strike from an answer which constitutes a final order has the same effect as a demurrer (Rockhill, Administrator v. Tomasic, 186 Kan. 599, 352 P. 2d 444; McCausland v. File, 141 Kan. 120, 40 P. 2d 323; Gas Service Co. v. Consolidated Gas Utilities Corp., 150 Kan. 715, 717, 96 P. 2d 608), but those decisions were all premised upon the fact that the motion to strike was sustained which affected a substantial right in the action and in effect determined the action, hence they were “final orders” as defined in 60-3303, although referred to as having the same effect as a demurrer.
The majority opinion cites Rockhill, Administrator v. Tomasic, supra, in support of its conclusion. I agree with the holding in that case, but it is clearly not in point. I am also in accord with what was there said that the time for taking an appeal from an order striking allegations involving the merits of a cause of action or defense cannot be extended by alleging the same cause of action or defense in a subsequent pleading and taking an appeal from a second order striking the cause of action or defense, but likewise that is not the case here.
The pivotal question in the case is, were the orders of September 28, 1960, final appealable orders? The court holds they were, and reaches that conclusion by construing them as being “equivalent” to demurrers. It relies principally upon the fact that the district court was required to pass upon the same question of law in ruling upon the demurrer as was presented by the motions. Assuming, arguendo, that was the case, that fact does not change the character of the motions, neither does it make them appealable after being overruled, nor permit their construction as being “equivalent” to demurrers. We are here dealing with the appealability or the *191finality of orders which would give this court jurisdiction to review the rightness or wrongness of the district courts disposition of the motions — not whether it was asked to re-examine the same question of law in ruling upon the demurrer as was presented by the motions. It is clear to me that, based upon our statutes and settled rules of law evidenced in our many decisions, the orders of September 28,1960, overruling the defendant’s motions to dismiss the action and to strike from the supplemental amended petition did not constitute final orders for appellate review, nor permit this court to label the motions as demurrers; consequently, had appeals been taken from those orders, this court would have been without jurisdiction to entertain the appeals. They simply were not final orders as defined in 60-3303. Because they were overruled — not sustained — they did not speak with finality; they did not end the proceeding. They were, however, reviewable in the appeal perfected December 23, 1960, from the order overruling the defendant’s demurrer since the notice of appeal specified them as two of the prior orders from which the appeal was taken. (G. S. 1959 Supp., 60-3314a.)
In attacking the sufficiency of a pleading to allege a cause of action, or state a defense, counsel should always carefully select the pleading authorized by the code of civil procedure. A procedure of attack requiring a district court to twice pass upon the same legal question is not proper.
In conclusion, and very briefly considering the case on the merits, the action is one as though it were first commenced on June 13, 1960. Being brought more than two years after February 15, 1958, the date of the death of plaintiff’s decedent, the action was not timely filed (G. S. 1959 Supp., 60-3203), and the demurrer should have been sustained. I would reverse the case and enter judgment for the defendant.