Macon-Atlanta State Bank v. Gall, 647 S.W.2d 585

Macon-Atlanta State Bank v. Gall

647 S.W.2d 585 | Mo. Ct. App. | 1983

DIXON, Judge.

Because there is no final appealable judgment or order in this case, the appeal must be dismissed. Rule 81.06.

The legal file reflects that the trial court ordered a separate trial on Count I of the six-count petition in this case. That trial was conducted and the judgment of the trial court for the plaintiff on Count I was appealed by two of the defendants in that count. The six-count petition filed by plaintiff Macon-Atlanta against the defendants Raymond, Zelta, Jerry, and James Gall, and the defendants Freddie and Mary Lieb-hart asserted claims and issues arising out of a trustee’s sale of a farm on which the bank held a note and deed of trust. The record owners of the farm were Raymond and Zelta Gall. Various counts of plaintiff’s petition include counts for rental value of the farm land following the foreclosure, the rental value of the farm house, and a prayer for damages under a contract between the plaintiff bank and the purchasers Liebhart and Raymond and Jerry Gall for the sale of a portion of the land foreclosed. The basis of this claim was the dispute between the parties with respect to defects in title arising from the same trustee’s sale. The plaintiff’s petition was met by counterclaims and the pleading of the various affirmative defenses, as well as cross-suits by some of the defendants for affirmative relief against the plaintiffs.

The jurisdiction of an appellate court must be determined before consideration of the appeal. That determination, if necessary, may be sua sponte. Kansas City Power & Light Co. v. Kansas City, 426 *586S.W.2d 105 (Mo.1968). Under Rule 81.06, before a separately tried claim in a court-tried suit involving more than one claim arising out of the same transactions, occurrences, or subject matter may be appealed, the court must specifically designate the decree as a final judgment. That was not done in this case. The undisposed of claims, cross-claim, and counterclaims render the judgment appealed from not final, requiring dismissal of this appeal. “An appellate court has no business and, in fact, no right to act as a legal advisory board to the parties in situations where the trial court has failed to dispose of all issues raised by the pleadings.” City of New Madrid v. Associated Electric Cooperative, Inc., 582 S.W.2d 727, 730 (Mo.App.1979).

The parties are directed to New Style Homes, Inc. v. Fletcher, 600 S.W.2d 634 (Mo.App.1980) (per curiam), for guidance in accelerating any future appeal of this cause, if one is taken from a judgment finally entered.

All concur.