154 Mo. 428 | Mo. | 1900
DIVISION one.
Damages for personal injuries.
Plaintiff, a passenger on one of the trains of the St. Louis and Suburban Railway Company, sues the defendants for ten thousand dollars damages for injuries sustained by
It is patent that upon this statement of the condition of the record that this appeal was prematurely taken, and hence must be dismissed.
Section 2246, Revised Statutes 1889, provided that: “Every person aggrieved by any -final judgment or decision of >any circuit court in any civil cause,” etc., might appeal, etc. This section was amended by the Act of 1891 (Laws 1891, p. 70), so as to allow appeals to be taken from certain orders and judgments entered in the progress of a cause before final judgment. By the Act of April 11, 1895 (Laws 1895, p. 91) the Act of 1891, amending section 2246, was itself amended, so as to provide that any party to a civil suit might appeal from any of the following orders: 1st, an order granting a new trial or in arrest of judgment; 2d, an order
Except in the cases specified an appeal will not lie until after a final judgment in the cause in the trial court.
Section 2206, Revised Statutes 1889, defines a judgment as follows: “A judgment is the final determination of the right of the parties in the action.” So that while section 2246, Revised Statutes 1S89, provides for an appeal only from a final judgment, and while the Act of 1895 provides for an appeal from any judgment, they mean the same thing in law, and although the Act of 1895 allows an appeal from any judgment, it specifies the character of judgments comtemplated, enumerating certain interlocutory judgments, and special orders after final judgment, and then covers the eases not already provided for by allowing an appeal after a final judgment.
The statute contemplates only one final judgment in any case. And while section 2040, Revised Statutes 1889, permits a plaintiff to unite in the same petition, by separate counts, as many causes of action as he believes he has, whether they “be such as have been heretofore denominated legal or equitable or both,” just as section 2049, Revised Statutes 1889, permits a defendant to unite in the same answer as many defenses, stated separately, as he believes he has, whether the same be legal or equitable, still there can be but one final judgment in any case, and if a petition contains two counts, whether both at law or both in equity or one at law and one in equity, and one is adjudged insufficient, there can be no final judgment or appeal from the order so adjudging it until after the whole issue is tried and determined, and the order adjudging one count insufficient is not a final judgment until the whole case is determined, and the whole
As the record in this case does not bring the ease within this rule, it follows that the appeal was prematurely taken and must be dismissed.
The act of 1899 (Laws 1899, p. 108) was not in force when this case was tried and hence has no application to the case. Moreover this case was not tried in the circuit court as that act requires.
Appeal dismissed.
IN BANG.
The foregoing opinion heretofore delivered in Division No. 1 is hereby adopted as the opinion of the court in banc.