59 Mo. App. 55 | Mo. Ct. App. | 1894
The plaintiff sued the defendant Reiss and others jointly. Reiss interposed a demurrer to the petition, which the court sustained. The other defendants took time to answer. After the demurrer of Reiss was sustained, the plaintiff declined to plead further, whereupon judgment was entered against him in favor of defendant Reiss. The judgment entry made no disposition of the other defendants, nor did the plaintiff dismiss as to them. Prom the judgment thus entered the plaintiff appealed, and
The motion is well taken. We decided in Caulfield v. Farish, 24 Mo. App. 110, that an appeal from a judgment on demurrer in favor of one of several defendants, leaving the cause pending as to the others, is premature and must be dismissed. The appellant claims that the law has been changed since that decision, and that by the law of 1891 (Session Acts 1891, p. 70), appeals can now be taken from judgments which are not final. The proper construction of that law authorizes appeals from interlocutory judgments only in the cases enumerated therein, and in no others.
The appellant also suggests that we should continue the cause, and give him an opportunity to finally dispose of the other defendants in the lower court before the next term of this court. We can not see how anyone can confer jurisdiction on an appellate tribunal by a novel species of a plea puis darrein continuance. If this were feasible, one might appeal from any order at any stage of the proceedings in the trial court, and, upon a motion to' dismiss his appeal, pray the court to continue it until he had tried his cause and obtained a final judgment in the trial court. The question before us is not whether we will have jurisdiction of a cause hereafter appealed, but whether we have jurisdiction of the cause pending before us on appeal now. Being of opinion that we have no such jurisdiction, we can not continue the appeal but are bound to dismiss it.
the appeal is dismissed.
