L & L Leasing Co. v. Asher
| Decision Date | 15 April 1969 |
| Docket Number | No. 33357,33357 |
| Citation | 440 S.W.2d 181 |
| Court | Missouri Court of Appeals |
| Parties | L & L LEASING COMPANY, a Corporation, Plaintiff-Appellant, v. Bob ASHER, d/b/a Bob's Carpet and Tile, Defendant-Respondent. |
Armstrong, Teasdale, Kramer & Vaughan, William H. Webster, Donald U. Beimdiek, George S. Thomas, St. Louis, for plaintiff-appellant.
Wm. J. Becker, Clayton, for defendant-respondent.
SMITH, Commissioner.
This action commenced in the Magistrate Court in St. Louis County upon plaintiff-appellant's petition seeking damages for breach of contract. Defendant-respondent filed an answer and counterclaim. Judgment in the Magistrate Court was for the plaintiff on its petition and for plaintiff on defendant's counterclaim. Appeal was taken to the Circuit Court. The cause, both petition and counterclaim, was there submitted on a stipulation of facts.
Plaintiff's cause of action was based upon the theory that the agreement between the parties was a valid lease of personal property for a fixed term and that defendant in failing to make the required payments was liable for the unpaid contract amount. Defendant's counterclaim was based upon the theory that the agreement was a conditional sales contract and that the repossession of the typewriter by plaintiff entitled defendant to seventy-five per cent (75%) of the money paid by him to plaintiff under the agreement.
The Circuit Court entered the order appealed from in the following words: Plaintiff appealed.
We are met at the outset by the question, not raised by either party, of the appealability of the order above set forth.
We must consider the appealability of the judgment, even though not raised by the parties. Bennett v. Wood, Mo., 239 S.W.2d 325; Schumacher v. Sheahan Investment Company, Mo.App., 424 S.W.2d 84.
With certain exceptions, not here pertinent, appeals are authorized only from final judgments. Sec. 512.020 R.S.Mo. 1959, (V.A.M.S.). Final judgment must dispose of all parties and issues in the case. It must dispose of all claims and counterclaims, except in certain special situations such as those enumerated in Civil Rule 82.06 (V.A.M.R.), not applicable here. Bennett v. Wood, supra; Farmers Mut. Hail Ins. Co. v. Garnard, Mo.App., 238 S.W.2d 437; Schumacher v. Sheahan Investment Company, supra; Severs v. Williamson, Mo.App., 198 S.W.2d 368.
The judgment here appealed from makes no ruling on defendant's counterclaim. Plaintiff asserts that by inference the counterclaim was denied. We cannot so infer. No reference to the counterclaim is made in the order of the...
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