Webb v. Kansas City

85 Mo. App. 148 | Mo. Ct. App. | 1900

SMITH, P. J.

— This is an action by plaintiff against defendants to recover damages on account^ of injuries received by the former by reason of the negligence of the latter. There was a trial by jury which resulted in a verdict in favor of plaintiff against defendant Crow and in favor of the other defendants. Subsequently, this verdict, on motion of defendant Crow, was set aside in its entirety. Later on still, all of the defendants except Crow and Eisher severally moved the court to strike their names from the docket as defendants and to dismiss the action as to them; which motion was by the court sustained and judgment given accordingly, from which the plaintiff has appealed. Subsequently, the case was dismissed as to defendant Crow. The record does not disclose that there was any final disposition made of the case as to defendant Eisher, against whom it is still pending.

The rule of appellate practice is now well settled in this state to the effect that a judgment entry is not final so as to justify an appeal unless it makes some disposition of all the parties to the record. Merchants Exchange v. Sessinghaus, 59 Mo. App. 106; Voorhis v. B. & L. Ass’n, 59 Mo. App. 55; Sater v. Hunt, 61 Mo. App. 228; Harman v. Blackstone, 61 Mo. App. 254; Caulfield v. Farish, 24 Mo. App. 110; McCord v. McCord, 77 Mo. 166. It follows from this that the plaintiff’s appeal was prematurely taken. If we have jurisdiction to entertain this appeal, and should decide the questions raised by it adversely to her contention, she could still go back to the circuit court and try the case there remaining against the other two defendants and if unsuccessful, appeal from the judgment and thus have two appeals where the law intended she should have only one. An appeal lies only from a final judgment.

A case can not be divided into parts and brought up in fragments. Kautsch v. Droste, 82 Mo. App. 412.

It is however insisted by the plaintiff that her right to an appeal in this case is established by the ruling made by us in State ex rel. v. Gibson, decided at last term. If the circuit court erred in making an order dismissing the said defendants from the case, the plaintiff’s remedy for the correction of the error was by appeal, and this was all that was decided in the ease just referred to. That case proceeded, of course, upon the assumption that the order of the court therein referred to was a final judgment, disposing of all the parties defendant and that it was therefore an appealable judgment. The real question that was there presented for consideration was whether the error complained of could be reviewed and corrected in a proceeding by mandamus, and it was held that it could. It was incidently ruled that the error must be corrected by appeal, and that was an undoubedly correct ruling. If the error could not be corrected in that way it could not be corrected at all.

The appeal will be dismissed.

Ellison, <7., concurs; Gill, J., absent.