596 S.W.2d 498 | Mo. Ct. App. | 1980
Plaintiffs George F. Brown and Valerie Brown owned Lots 9 and 10, and defendants Cletus H. Stover and Martha Stover owned Lots 11 and 12, in Block 6, Hunter, Phillips, McCoy and Tanner Addition to the city of New Madrid, Missouri. The Stover lots were east of, and contiguous to, the lots owned by Mr. and Mrs. Brown. The Sto-vers started to construct a fence along a line that the Browns contended was on Lot 10. The Browns then sued the Stovers, and asked for an injunction restraining the Sto-vers from building the fence and requiring them to remove that portion of the fence that had already been completed. The Sto-vers counterclaimed. They contended that they were the owners of the disputed strip of property, either on the basis of a survey made at their direction or by adverse possession. The prayer in their counterclaim asked the court to quiet title in their favor. The case was court-tried.
“Now on this 22nd day of August, 1978, the Court having heard the evidence heretofore on the 28th day of June, 1978, and now being sufficiently advised in the premises, finds that the boundary line between Lots Ten (10) and Eleven (11), Block Six (6), Hunter, Phillips, McCoy and Tanner Addition to the City of New Madrid, New Madrid County, Missouri, to be as designated by survey made by Charles H. Ice, county surveyor, New Madrid County, Missouri, on August 5, 1977, and recorded in Plat Book No. 7, Page 16, New Madrid County Recorder’s Office, which survey indicates the boundary line of Lots Nine (9) and Ten (10), Block Six (6), Hunter, Phillips, McCoy and Tanner Addition to the City of New Madrid, New Madrid County; Missouri, and designated as Plaintiffs’ Exhibit ‘B’.
IT IS, THEREFORE, CONSIDERED, ORDERED and ADJUDGED by the Court that a perpetual injunction be, and is hereby granted restraining and preventing the Defendants, their agents, servants and employees from completing construction of the fence, the subject of this cause of action, and the Defendants are ordered to remove the existing fence from Plaintiffs’ property; that the boundary line between Lots Ten (10) and Eleven (11), Block Six (6), Hunter, Phillips, McCoy and Tanner Addition to the City of New Madrid, New Madrid County, Missouri, is fixed as indicated by survey made by Charles H. Ice, New Madrid County surveyor, on August 5, 1977, and recorded in Plat Book 7, Page 16, New Madrid County Recorder’s Office.
It is further ordered by the Court that the costs herein be, and are hereby, taxed against the Defendants.
Rex A. Henson, Special Judge”
The decree seems to dispose of the issues raised by plaintiffs’ petition, but it does not dispose of the issues raised by the counterclaim. In order to constitute a final judgment from which an appeal may be taken, under the law allowing appeals, § 512.020, RSMo 1969 and Rule 74.01, V.A.M.R., a judgment must dispose of all issues and all parties in the case. The judgment from which an appeal was attempted here does not do so, as it does not rule for or against either party on the counterclaim. The judgment is not final and, therefore, it is not appealable. We have no choice but to dismiss the appeal. Frey v. Gabel, 574 S.W.2d 38, 39 (Mo.App.1978), and cases cited therein.
The appeal, having been prematurely filed, is dismissed. The cause is remanded to the trial court with directions to prepare and file a final judgment which disposes of all of the issues raised in both the petition and the counterclaim. From that final judgment appeals may be taken. The transcript and briefs now on file may be refiled, together with the supplemental transcript and any supplemental briefs that the parties may desire to file.
