Farmers Mut. Hail Ins. Co. v. Garnand
| Decision Date | 02 April 1951 |
| Docket Number | No. 21463,21463 |
| Citation | 238 S.W.2d 437 |
| Parties | FARMERS MUT. HAIL INS. CO. v. GARNAND. |
| Court | Missouri Court of Appeals |
T. C. Owen, Warrensburg, for appellant.
L. A. Warden, Trenton, for respondent.
BOUR, Commissioner.
Plaintiff instituted this suit in the magistrate court of Grundy County to recover a judgment for $34.51. Defendant filed an answer and counterclaim and plaintiff filed a reply to the counterclaim. In view of the conclusion which we have reached in this case it is not necessary to state the contents of the pleadings. The cause was certified to the circuit court of Grundy County on plaintiff's application for change of venue, there being but one magistrate in the county. Defendant filed in the circuit court an amended answer and counterclaim, together with a motion to dismiss the petition. The motion to dismiss alleged that it appeared upon the face of the petition that 'plaintiff's cause of action, if any it had,' was barred by the five-year statute of limitations. R.S.1949, Sec. 516.120. This motion was sustained upon the ground that the petition failed 'to state facts sufficient to constitute a cause of action' and an order was made dismissing the cause. From this order plaintiff has appealed.
In the brief filed by defendant-respondent, counsel for respondent has raised the question of whether the appeal is premature. It is stated, however, that respondent 'waives all objections' and 'is not urging that the appeal be dismissed because prematurely taken as respondent prefers to have this court pass upon the law and the issues involved.' It is the duty of this court to determine whether or not an appeal is premature even though the point is not raised by any party. Poston Springfield Brick Co. v. Brockett, Mo.App., 183 S.W.2d 404, 406. Unless there is a judgment or order in a case from which an appeal is permitted by statute, appellate jurisdiction to review is denied this court. Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657. Such jurisdiction cannot be conferred by consent or acquiescence of the parties. If no appealable judgment or order has been entered in this cause, the appeal is premature and must be dismissed. Severs v. Williamson, Mo.App., 198 S.W.2d 368; S. S. Kresge Co. v. Shankman, Mo.App., 194 S.W.2d 716.
The Civil Code authorizes an appeal in a case such as this only 'from any final judgment in the case'. Section 126, Laws 1943, p. 390, Mo.R.S.A. Sec. 847.126, R.S.1949, Sec. 512.020. 'A judgment is the final determination of the right of the parties in the action.' Section 1236, R.S.1939, Mo.R.S.A. Sec. 1236, R.S.1949, Sec. 511.020. Ordinarily, a judgment must dispose of all parties and all issues to be a final judgment for the purposes of appeal. Deeds v. Foster, Mo.Supp., 235 S.W.2d 262; Shoush v. Truitt, Mo.App., 235 S.W.2d 859. Compare Supreme...
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