Hanover Fire Ins. Co. v. Commercial Standard Ins. Co.
| Decision Date | 13 December 1948 |
| Docket Number | No. 40819.,40819. |
| Citation | 215 S.W.2d 444 |
| Parties | HANOVER FIRE INS. CO. v. COMMERCIAL STANDARD INS. Co. et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jackson County; Brown Harris, Judge.
Action by Hanover Fire Insurance Company, a corporation, against Commercial Standard Insurance Company, a corporation, and James H. Cantrell. From an order granting motion of first named defendant to dismiss, the plaintiff appeals.
Appeal dismissed.
Chet Vance, Burns & Burns, and Ira B. Burns, all of Kansas City, for appellant.
Sam Mandell, of Kansas City (Popham, Thompson, Popham, Mandell & Trusty, of Kansas City, of counsel), for respondent Commercial Standard Ins. Co.
DALTON, Commissioner.
Action by plaintiff corporation to recover "judgment against the defendants in the sum of $8,000.00 punitive or exemplary damages and $259.35, with interest at 6% thereon, as its actual damages."
It will not be necessary to relate the allegations of the first amended petition except to say that the action is based upon the alleged making of a settlement, the payment of money and the execution of a release of a claim between the defendants, which settlement, payment and release the plaintiff alleged were made for the purpose of carrying into execution a conspiracy between the defendants to cheat and defraud plaintiff and to deprive plaintiff of certain equitable rights to subrogation arising on the facts alleged in the petition.
Defendant James H. Cantrell filed a separate answer denying each and every allegation of the petition. Defendant Commercial Standard Insurance Company filed its separate motion to dismiss on the ground that plaintiff's first amended petition "fails to state any claim against this defendant upon which any relief can be granted to plaintiff." The motion to dismiss was first overruled, but the order was subsequently set aside and "said motion was then by the court sustained unless plaintiff filed an amended petition within thirty days." Plaintiff's counsel thereafter announced "that it would not file an amended petition as required by the court's order sustaining the motion." The court then entered an order that the cause be dismissed at the plaintiff's cost. Plaintiff, thereupon, filed notice of appeal and the matter has been presented in this court. Error is assigned on the trial court's order "sustaining the motion to dismiss and dismissing the cause."
We think it is apparent from the record presented that the original cause is still pending and undisposed of in the trial court as to defendant James H. Cantrell. In reply to a direct inquiry by the clerk of this court, the clerk of the circuit court of Jackson County states: "Our records show no disposition of the cause as to James H. Cantrell." On the other hand, appellant insists that the order of dismissal "embraces the whole case" and that appellant has "construed that order to mean complete dismissal of everything" and "as complete determination as to both defendants."
The record shows that the motion to dismiss, as filed by defendant ...
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