189 Mo. 375 | Mo. | 1905
This is an action, by Minnie A. Baker, plaintiff, against the City of St. Louis and the following officials of said city, viz.: Am and Ravold, Bacteriologist; William C. Tiechman, City Chemist;
The petition is in five counts. The first and second each ask $5,000 damages for the death of two of plaintiff’s minor children, and the other three counts each ask $2,000 damages on account of sickness of three of plaintiff’s children, all caused, it is alleged, by the negligence of defendants jn furnishing plaintiff with improperly prepared and noxious diphtheria antitoxin.
The answer of defendant Ravold to the petition was a general denial. The other defendants demurred thereto, their demurrer was sustained, and judgment thereon rendered in. their favor. Thereupon plaintiff dismissed as to Ravold, and the defendants other than Ravold filed the following motion:
“Now come all the defendants in the above-entitled cause (except Amand Ravold), and particularly the city of St. Louis, and object to, and except to, the action of the court in permitting the plaintiff to dismiss the cause as to Amand Ravold, and move the court to set aside said dismissal, for the following reason, to-wit:
“It appears from plaintiff’s petition that the alleged cause of action sued for arises from the wrongful and unauthorized acts and carelessness and negligence of said Ravold, if there be any liability at all on the part of any of the defendants; and that by reason thereof onky is the city of St. Louis made a party to the cause. It further appears that said Ravold was duly subject to service in this State and actually had been served by the plaintiff, and is a codefendant contemplated by Laws 1901, pp. 78-79; and that the defendant city of St. Louis has a right, and hereby insists, on said Ravold being retained as a defendant in this cause so long as it, the said city of St. Louis, remains party*378 thereto, and plaintiff having voluntarily brought said Ravold into the case as a party thereto, will not now be permitted to dismiss as to him and thereby compel this defendant to go through the useless formality of again making him a party thereto as provided in said act above referred to.”
And thereafter on the same day without any disposition having been made of this motion, the plaintiff perfected her appeal.
As this motion is still pending in the circuit court, there has been no final disposition of the case as to the defendant Amand Ravold, and as there can be but one final judgment in a civil action, which must dispose of all the parties to the cause, the appeal was prematurely taken, and must be dismissed. [Rock Island Imp. Co. v. Marr, 168 Mo. 252; Seay v. Sanders, 88 Mo. App. 478.] For this reason the motion of respondents to dismiss the appeal will be sustained and the appeal dismissed.