Kidd v. Katz Drug Co.
| Decision Date | 03 December 1951 |
| Docket Number | 21648,Nos. 21647,s. 21647 |
| Citation | 244 S.W.2d 605 |
| Parties | KIDD v. KATZ DRUG CO. et al. (two cases). |
| Court | Missouri Court of Appeals |
Don M. Jackson, A. Warren Francis, Kansas City, for appellant.
Shughart & Thomson and Harry P. Thomson, Jr., all of Kansas City, for respondent.
The appeals in these two cases have been consolidated. Carmeta M. Kidd is the plaintiff in one and sues for alleged injuries from the use of a certain shampoo compound, purchased by her from defendant Katz Drug Company and manufactured by defendant Hal Collins Company, both corporations. Her husband is the plaintiff in the other action, brought against the same defendants for the loss of his wife's services and growing out of the same transaction. In both cases the defendant Hal Collins Company filed its answer to the petitions. In both cases, defendant Katz Drug Company answered the petitions and pleaded a cross-claim against defendant Hal Collins Company for judgment 'for all sums which might be adjudged against it and in favor of the plaintiff.' Thereupon, the Hal Collins Company (respondent) filed a separate motion in each case to dismiss the cross-claim for failure to state a claim upon which relief can be granted, or, in the alternative, for a more definite bill of particulars. The court sustained the motions to dismiss the cross-claims and so ordered. From these orders or judgments dismissing the cross-claims the Katz Drug Company (appellant) has appealed.
The appellant devotes most of its briefs to the support of its right to take these appeals, and respondent has moved to dismiss them on the ground of prematurity, to which motions its brief is almost entirely addressed. The motions to dismiss the appeals require our first attention.
It must be noted that no order for a separate trial of the cross-claims was made or requested, nor did the court conduct a separate trial on the merits thereof or order any separate judgment on the merits; nor did the court make any order other than to dismiss the cross-claims on motion for failure to state a claim. Had such orders for separate trials and separate judgments been made the judgments of dismissal would be considered final for the purposes of appeal and separate appeals would have been authorized under Rule 3.29, unless ordered held in abeyance by the court. In the absence of compliance with the above rule, respondent contends that the orders or judgments of dismissal did not dispose of all the issues of the cases as to all the parties and were not final, and that these appeals are, therefore, premature.
We construe Rule 3.29 to apply to cross-claims, although not specifically so designated therein. Carr, Missouri Civil Procedure, Vol. 2, page 47. The purpose of the rule is to preserve the law as before the present Code in respect to appeals by piecemeal. In Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, at page 561, 98 S.W.2d 614, at page 616, it was said:
It has frequently been ruled that appeals from orders or judgments which do not dispose of all the issues and parties are unauthorized under the new Code and rules, unless the issues therein were separately trued and separate judgments thereon were ordered by the trial court. See Deeds v. Foster, Mo.Sup., 235 S.W.2d 262; White v. Sievers, 359 Mo. 145, 221 S.W.2d 118; S. S. Kresge Co. v. Shankman, Mo.App., 194 S.W.2d 716; Shoush v. Truitt,...
To continue reading
Request your trial
-
Collier v. Smith
...Mo.App., 263 S.W.2d 858, 859(1); Ladue Contracting Co. v. Land Development Co., Mo.App., 262 S.W.2d 360, 361(2); Kidd v. Katz Drug Co., Mo.App., 244 S.W.2d 605, 606(2); Green v. Green, Mo.App., 240 S.W.2d 741, 742(3); Graham v. Bottorff, Mo.App., 240 S.W.2d 191, 193(5).3 Bennett v. Wood, Mo......
-
Weir v. Brune
...Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614, 616; Green v. Green, Mo.App., 240 S.W.2d 741, 742; Kidd v. Katz Drug Co., Mo.App., 244 S.W.2d 605, 606. The pleader in the instant case made three different statements of one and the same claim (cause of action) for each plai......
-
Sutton v. City of St. Joseph
...S. S. Kresge Co. v. Shankman, Mo.App., 194 S.W.2d 716; State ex rel. Thompson v. Terte, 357 Mo. 229, 237, 207 S.W.2d 487; Kidd v. Katz Drug Co., Mo.App., 244 S.W.2d 605; Wicker v. Knox Glass Associates, Inc., 362 Mo. 614, 622, 242 S.W.2d 566; Sections 511.020 and 512.020 RSMo 1949, V.A.M.S.......
-
State ex rel. State Highway Commission v. Hammel
...appeal taken from the final judgment in the case.' The situation before us is analogous to that appearing in the case of Kidd v. Katz Drug Co., Mo.App., 244 S.W.2d 605. There, one defendant filed a cross-claim against the other defendant. A motion to dismiss the cross-claim was sustained an......