S. S. Kresge Co. v. Shankman, 20722.

• Decision Date: 13 May 1946
• Docket Number: No. 20722.,20722.
• Citation: 194 S.W.2d 716
• Parties: S. S. KRESGE CO. v. SHANKMAN et al.
• Court: Missouri Court of Appeals

194 S.W.2d 716

S. S. KRESGE CO. v. SHANKMAN et al.

No. 20722.

Kansas City Court of Appeals. Missouri.

May 13, 1946.

Appeal from Circuit Court, Jackson County; Ben Terte, Judge.

Action by S. S. Kresge Company, a corporation, against Morris Shankman and Agnes E. Shankman, and Mildred Godfried and Gilbert Godfried, for declaratory judgment relating to alleged rights growing out of a lease and an easement provided for therein. From order dismissing the cause as to defendants Morris Shankman and Agnes E. Shankman, plaintiff appeals.

Appeal dismissed.

Maurice J. O'Sullivan, Philip M. Wilson, and John G. Killiger, Jr., all of Kansas City, for appellant.

Charles E. McCoy and Grant I. Rosenzweig, both of Kansas City, for respondents.

DEW, Judge.

Appellant, plaintiff below, filed a petition against all of the named defendants, for a declaratory judgment relating to alleged rights growing out of a lease and an easement provided for therein. Respondents, the defendants Shankman, filed their answer, which they followed with a motion to dismiss the cause as to them. This motion was sustained and an order was made therein dismissing said cause as to respondents. From this order plaintiff has appealed. As against the remaining defendants no further action in the case has been taken, and the case as to all the defendants is pending and awaiting trial.

Respondents have filed a motion to dismiss this appeal, but on grounds which, for reasons hereinafter stated, it is not necessary for us to consider. Neither is it necessary to state the contents of the pleadings, nor to set forth the other points here made.

The "right of appeal is purely statutory, and exists only in cases specified or reasonably within the statute." Bueker v. Aufderheide, Mo.Sup., 111 S.W.2d 131, 132. Matters which are appealable are prescribed by Section 126, Civil Code, Laws of Missouri, 1943, pp. 353-397, Mo.R.S.A. § 847.126. They are, so far as this kind of action is concerned, identical with those prescribed by the old code. Section 1184, R.S.Mo.1939, Mo.R.S.A. Except as to certain matters designated in those sections of which the matter at hand is not one, no order made before final judgment is appealable. "A judgment, to be final and appealable, must dispose of all parties and all issues in the cause." Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614, 615. An order in a case such as the one at bar which does not dispose of all the defendants, is not a final judgment and is not appealable.

In Webster v. Sterling Finance Co., et al., Mo.Sup., 165 S.W.2d 688, a separate demurrer of the defendant Sterling Finance Company was sustained as to each count of the petition on the ground that the same did not state facts sufficient to constitute a cause of action in favor of plaintiff and against said defendant. No order or judgment was entered in reference to the remaining defendant, as to which the cause was still pending. An appeal was taken by the plaintiff from the judgment of dismissal as to defendant Sterling Finance Company. The court, after reviewing the various authorities on the right of appeal, held that because no action had been taken disposing of the other defendant, the appeal was, therefore, premature and must be dismissed. The court said, 165 S.W.2d loc. cit. 690:

"Since it appears from the record in this cause that the judgment entered herein dismissing the cause as to the Sterling Finance Company made no disposition of the cause as to the other defendant, the judgment entered was only interlocutory and, until there has been a final judgment disposing of all the issues as to all of the parties in the cause, no appeal will lie. It follows that the appeal herein by plaintiff from the interlocutory judgment of dismissal as to the Sterling Finance Company was premature and must be dismissed. It is so ordered."

In addition to the cases cited in the Webster case, supra, many other cases hold to the same effect. Rock Island Implement Co. v. Marr, 168 Mo. 252, 67 S.W. 586; Godefroy Mfg. Co. v. Lady Lennox Co., Mo.App., 110 S.W.2d 803; Stevens v. Oberman Mfg. Co., 229 Mo.App. 627, 79 S.W.2d 516; Sater v. Hunt, 75 Mo.App. 468.

In view of the above, we are forced to hold that this appeal is premature and not properly before us. For that reason we can only dismiss the appeal. It is so ordered. All concur.

On Motion for Rehearing.

Appellant in its motion for rehearing concedes that prior to January 1, 1945, the date when the present Civil Code became effective, a single judgment disposing of all issues and all parties was requisite for an appeal. Its able counsel argue that the statutes and decisions making that requirement are now obsolete by reason of the new code and Supreme Court rules promulgated thereunder. They contend that Supreme Court Rule 3.29, without defining "final judgments," identifies certain judgments and brings them within Section 126 of the present Civil Code, Mo.R.S.A. § 847.126. It is urged that Rule 3.29 provides for separate final judgments disposing...