Koeln v. Gould

• Decision Date: 14 July 1914
• Docket Number: No. 16693.,16693.
• Citation: 260 Mo. 499,168 S.W. 1140
• Parties: KOELN et al. v. GOULD.
• Court: Missouri Supreme Court

168 S.W. 1140

260 Mo. 499

KOELN et al. v. GOULD.

No. 16693.

Supreme Court of Missouri, Division No. 2.

July 14, 1914.

APPEAL AND ERROR (§ 78) — ORDERS APPEALABLE — STATUTORY PROVISIONS.

Under Rev. St. 1909, § 2038, authorizing appeals from enumerated orders, an order denying a motion to set aside an order quashing the summons and the service thereof is not appealable.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Edmond Koeln and another against George J. Gould, trustee, and others. From an order overruling a motion to set aside an order quashing the summons and service thereon as to the defendant named, plaintiffs appeal. Dismissed.

H. K. Bunch and E. C. Dodge, both of St. Louis, for appellants. James F. Green, of St. Louis, for respondent.

WILLIAMS, C.

This is an action in ejectment, instituted in the circuit court of the city of St. Louis. The petition names as defendants the following: Jay Gould Estate, George J. Gould, trustee, Michael Hamill, and Louis Grossgloss. Personal service was had in the state of Missouri upon defendant Grossgloss, who appeared and filed his answer in the cause. It further appears that plaintiffs filed an affidavit stating that defendant Gould was a nonresident of the state of Missouri and that the ordinary process of law could not be served upon him in this state; that thereupon a summons was issued for defendant Gould and sent to the state of New York, where it was served. Later said Gould, appearing specially, filed a motion to quash said summons and the service thereon for reasons therein stated. The court sustained the motion to quash. Later plaintiffs filed a motion to vacate and set aside the order of the court sustaining the motion to quash. The motion to set aside was overruled by the court. Thereupon plaintiffs filed an affidavit for an appeal, and the court allowed an appeal to this court. The cause remains pending in the circuit court, undisposed of as to the defendant who filed answer.

This appeal must be dismissed, for the reason that there was no final judgment entered in the cause from which an appeal could be taken. Section 2038, R. S. 1909. "The rule of appellate practice is well settled in this state that a judgment entry is not final, so as to authorize an appeal, unless it makes some disposition of all the parties to the record." Rock Island Implement Co. v. Marr, 168 Mo. 252, loc. cit. 257, 67 S. W. 586; Baker v. St. Louis, 189 Mo. 375, 88 S. W. 74; Karabacek v....