Pizzo v. Pizzo, 44762

CourtUnited States State Supreme Court of Missouri
Citation365 Mo. 1224,295 S.W.2d 377
Docket NumberNo. 44762,44762
PartiesConnie PIZZO, Respondent, v. Don F. PIZZO, Joe Pizzo, and Rose Pizzo, Appellants,
Decision Date12 November 1956

Philip A. Foley, Clayton, for appellants.

Edward H. Tenney, Jr., Joseph J. Howard, St. Louis, for respondent. Tenney, Dahman & Smith and Cook, Fairfield, Howard & Murphy, St. Louis, of counsel.

DALTON, Judge.

On March 31, 1954, plaintiff instituted an action in four counts against defendant Don F. Pizzo in the circuit court of St. Louis County. In count one (on the theory of a resulting trust) plaintiff sought to be declared the owner of an undivided one-half interest in particularly described real estate and personal property located in St Louis County; in count two she asked for an order for partition of the described property; in count three she asked damages for breach of promise of marriage; and in count four she asked actual and punitive damages for personal injuries resulting from an assault and battery. Thereafter, on April 12, 1954, defendant transferred the described real estate by warranty deed to Joe Pizzo and Rose Pizzo, his uncle and aunt, with whom he resided. On May 7, 1954, plaintiff filed an amended petition joining Joe Pizzo and Rose Pizzo as additional parties defendant and she added a fifth count in which she asked the court to set aside the said conveyance to Joe Pizzo and Rose Pizzo on the ground that the conveyance was without consideration and in fraud of creditors. Defendant Don F. Pizzo filed a general denial as to all of the counts of the amended petition, while the other defendants filed an answer to count five admitting the conveyance to them, but denying other allegations.

On November 20, 1954, the record shows: 'Trial by court on counts 1, 2 and 5 of plaintiff's petition.' Thereafter, the court filed a document showing its findings on each of said counts. Each paragraph disposing of a count recites that the 'Finding, Judgment and Decree' is in favor of plaintiff on the particular count and against the defendants and it sets forth the relief granted, all in accordance with the relief asked in counts one, two and five of the amended petition. Immediately thereafter the record shows a 'Memorandum of Court' setting out the court's finding of particular facts, the court's theory of the case and the authorities relied upon. On December 27, 1954, an order was entered of record entitled 'Decree of Court.' The record under this heading shows the court's detailed findings of fact on each of the three counts and the particular relief granted. All of the issues raised by the pleadings in counts one, two and five are fully disposed of in favor of plaintiff and all costs are taxed against the defendants. After motions for new trial were filed and overruled, the defendants filed notice of appeal. For convenience, we shall continue to refer to respondent as plaintiff.

The issue has not been raised by the parties, but it is our duty to determine whether a separate, final appealable judgment has been entered on counts one, two and five of the petition. Hammonds v. Hammonds, 364 Mo. 517, 263 S.W.2d 348, 350(4); Deeds v. Foster, Mo.Sup., 235 S.W.2d 262, 265(1). We think this issue turns entirely upon the construction to be placed upon Supreme Court Rule 3.29, 42 V.A.M.S., which we shall presently consider.

The right of appeal is purely statutory. Tucker v. Miller, 363 Mo. 820, 253 S.W.2d 821, 823(1); Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 695(1), 34 A.L.R.2d 972. Further, Section 512.020 RSMo 1949, V.A.M.S., permits an appeal 'from any final judgment in the case'; that is, from 'the final determination of the right of the parties in the action.' See Section 511.020 RSMo 1949, V.A.M.S. While an appeal is authorized by Section 512.020 RSMo 1949, V.A.M.S., 'from any interlocutory judgments in actions of partition which determine the rights of the parties,' in the case under consideration the question of plaintiff's right, title and interest in the described property was settled by the determination of the issues raised in counts one and five of the petition, which determined plaintiff's ownership of a one-half interest in the property sought to be partitioned and set aside the purported conveyance thereof.

The general rule is that a judgment to be final and appealable must dispose of all parties and all issues in the case and leave nothing for future determination. Bennett v. Wood, Mo.Sup., 239 S.W.2d 325, 327(3); State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487, 489(2); Deeds v. Foster, supra. In the Deeds case it was said : 'The rule stated applies except for separate final judgments expressly ordered under Supreme Court Rule 3.29.' (Italics ours.) The purpose of the general rule is to prevent the piecemeal presentation of cases on appeal, or in detached portions. Weir v. Brune, 364 Mo. 415, 262 S.W.2d 597. Further, Section 511.130 RSMo 1949, V.A.M.S., provides that 'only one final judgment shall be given in the action', but this section has been modified by Supreme Court Rule 3.29. And see Sections 507.040, and 507.050 RSMo 1949, V.A.M.S.

Supreme Court Rule 3.29 provides: 'When a separate trial of any claim * * * is ordered in any case and a jury trial thereof is had the separate judgment entered upon the verdict therein shall be deemed a final judgment for the purposes of appeal within the meaning of section 126 (now Section 512.020 RSMo 1949). When a separate trial of any such claim is had before the court without a jury, the court may order a separate judgment entered which shall be deemed a final judgment for the purposes of appeal within the meaning of Section 126, or the court may enter a separate interlocutory judgment and order it held in abeyance until other claims, counterclaims or third party claims in the case are determined in which event appeal shall not lie until a complete judgment disposing of all claims is entered. In case a separate final judgment is entered the court may stay its enforcement until other or all final judgments in the cause are entered and may prescribe such conditions as are necessary to secure and protect the relative rights of all parties.' (Italics ours.)

With regard to non-jury trials, the rule clearly gives the court discretion to order a separate judgment on the separate non-jury trial of a claim and provides such separate judgment shall be deemed a final judgment for the purposes of appeal. Carr, Missouri Civil Procedure, Vol. II, Sec. 860, p. 47. The discretion to 'order a separate judgment' is a discretion to be exercised by the trial court and not by the appellate court. It is of vital importance to litigants and their counsel for the purpose of appeal to be able to know when a final, appealable separate judgment has been entered. See Supreme Court Rule 3.24. Its importance to litigants is well illustrated by the decision in Readenour v. Motors Insurance Corporation, Mo.App., 287 S.W.2d 135, decided by the Kansas City Court of Appeals on January 9, 1956, holding that the trial court's decision of the separate trial of an equity court of a petition requesting reformation of an insurance contract (relief which was important to the trial of the second count at law to recover on the policy), was a separate judgment, final and appealable and, therefore, not reviewable on a subsequent appeal after final judgment on the second count. On application of defendant-appellant, that case has been removed to this court for final determination. And see Winn v. Farmers Mutual Fire Insurance Co., 83 Mo.App. 123. The mere fact that the circumstances in a particular case are such that the court may find it necessary to separately try the issues of a particular count in equity, or in a jury waived case at law, does not mean that the disposition made by the court of the issues of that count is immediately intended as a final appealable separate judgment within the meaning of the Rule 3.29, however, we are here only concerned with the particular judgment entered in this case on counts one, two and five.

In Amitin v. Izard, Mo.App., 252 S.W.2d 635, 640(1), the court considered an order for a separate trial to be an order for a separate final judgment. The opinion in Weir v. Brune, Mo.Sup., 256 S.W.2d 810, 811, lends credence to this view. And see Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, and Harper v. St. Joseph Lead Co., 361 Mo. 129, 233 S.W.2d 835. In the case of Mothershead v. Milfeld, 361 Mo. 704, 236 S.W.2d 343, 344(1), there was a stipulation and special circumstances attending a separate non-jury trial and a separate judgment on the first count of a petition from which this court reached the conclusion that the judgment as to title, which was the underlying issue in the other untried counts, was intended to finally adjudicate that issue and it was considered a separate, final judgment for the purpose of appeal. And see Weir v. Brune, supra, 262 S.W.2d 597, 599(3), wherein it is stated: 'Broadly, our Rule 3.29 authorizes the entry of a final judgment, in an appealable sense under Sec. 512.020, when a separate trial of any 'claim, counterclaim, or third party claim' is ordered in any case.' (Italics ours.) Apparently, it is not possible to reconcile these divergent holdings and general statements on the theory that some are in jury cases and others non-jury cases. However, in this case we are seeking to determine whether the authority to order a separate judgment has been exercised in this non-jury case, where the court did not designate the judgment a separate judgment, nor indicate that the judgment was intended either as final or interlocutory.

Should the judgment disposing of all of the issues presented by counts one, two and five be deemed final and appealable, prior to the disposition of the other counts of the petition, which counts purport to state independent causes of action at law? This is a multiple...

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