Spires v. Edgar

• Decision Date: 09 September 1974
• Docket Number: No. 57294,57294
• Citation: 513 S.W.2d 372
• Parties: Richard E. SPIRES and Frances T. Spires, Appellants, v. William R. EDGAR, Jr., et al., Respondents.
• Court: Missouri Supreme Court

Page 372

513 S.W.2d 372

Richard E. SPIRES and Frances T. Spires, Appellants, v. William R. EDGAR, Jr., et al., Respondents.

No. 57294.

Supreme Court of Missouri, En Banc.

Sept. 9, 1974.

Derrick & Holderle and Tyree C. Derrick, St. Louis, Robert A. McIlrath, Flat River, for appellants.

G. C. Beckham, Steelville, for respondent William R. Edgar, Jr.

PER CURIAM.

This suit is for damages for the alleged wrongful foreclosure of a deed of trust. Plaintiffs were the makers of the note of $71,000 and the grantors in the deed of trust. The named defendants are William R. Edgar, Jr., the trustee, and David J. and Eleanor L. Lawless, the holders of the note. This appeal pertains to Edgar alone; his separate motion to dismiss plaintiffs' third amended petition was sustained on September 1, 1971, for failure to state a cause of action against him. In the same order the court ruled: 'The within order designated final for purposes of appeal.' This appeal was taken on September 9, 1971, prior to the constitutional change of January 1, 1972, and the suit is for a total of $105,000 in damages. From a monetary standpoint we have jurisdiction. Laws 1969, 3rd Ex.Sess., p. 110, Sec. 1. Our record here shows nothing as to the defendants Lawless, except that they were named as parties and are still carried as parties in the transcript and briefs.

This appeal was first heard in Division Two and transferred by division to the Court en banc. The principal reason for the transfer was to determine whether the order appealed from was an appealable judgment under rule 81.06, V.A.M.R. The question arose because, as noted supra, the record does not show a disposition of all issues and all parties, to wit: the issues as to parties defendants Lawless were not disposed of as of the time the appeal was taken from the order dismissing plaintiffs' claim against Edgar for failure to state a cause of action against him.

It has been ruled many times that, since an appeal must be from a final judgment (with specified exceptions), the trial court must have disposed of all issues and all parties. Downey v. United Weatherproofing, Inc., 241 S.W.2d 1007 (Mo.1951); Thomas v. Orrick Special School Dist., 246 S.W.2d 523 (Mo.App.1952); Bays v. Lueth, 323 S.W.2d 236 (Mo.1959); Wicker v. Knox Glass Associates, 362 Mo. 614, 242 S.W.2d 566 (1951); Beuttenmuller v. Vess Bottling Co. of St. Louis, 395 S.W.2d 204 (Mo.1965).

An order sustaining a motion to dismiss plaintiffs' petition on the ground that the petition fails to state a cause of action constitutes a disposition of plaintiffs' claim on the merits, Continent Foods Corp. v. National-Northwood, Inc., 470 S.W.2d 315 (Mo.App.1971), rules 67.03, 67.06, and if that order disposes of the whole case, it is appealable.

In the instant case the order sustaining defendant Edgar's motion to dismiss plaintiffs' claim against him disposed of plaintiffs' claim against Edgar on the merits; however, since other defendants remained in the case and the issues as to them remained undisposed of, the question arises as to whether plaintiffs can then appeal or if they must await the outcome of the remainder of the case before appealing. As stated supra, the trial court designated its order dismissing plaintiffs' claim against Edgar as final for purposes of appeal pursuant to the second sentence of rule 81.06 (formerly rule 82.06, and earlier amended rule 3.29). The forerunner of rule 81.06 was rule 3.29, adopted in 1945 by this court. Rule 3.29 was amended effective May 15, 1957, and, except for renumbering, has remained unchanged since then.

State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487 (Banc 1947), was decided under original rule 3.29. The court there held that the dismissal order as to two defendants in a joint action for personal injuries against three defendants was not an appealable order at the time it was entered. The court said, loc. cit. 489: 'Where the suit is on one cause of action against several defendants there can be no appeal from a dismissal of the case as to some defendants only because in such type of action there must be a single final judgment disposing of all parties before an appeal may be taken. This is a requirement of both the old and new Codes. S. S. Kresge Co. v. Shankman, Mo.App., 194 S.W.2d 716; W. T. Rawleigh Co. v. Rouse, Mo.App., 204 S.W.2d 438. This case does not present the situation contemplated by Supreme Court Rule 3.29 which applies when several different claims against different parties are joined in one suit. See Carr, § 860.'

As noted supra, rule 3.29 was amended effective May 15, 1957. About two years later, Dotson v. E. W. Bacharach, Inc., 325 S.W.2d 737 (Mo.1959) was decided. In that case plaintiff Dotson sued Bacharach for injuries arising out of an automobile collision. Bacharach filed a third-party petition against its alleged employee and driver of its car, Starr. Starr filed a counterclaim against Dotson for injuries arising out of the same collision. Plaintiff file a motion to dismiss Starr's counterclaim which the court sustained and dismissed Starr's counterclaim. Starr appealed. This court considered the question of appealability under rule 3.29, as amended effective May 15, 1957. The pertinent part of rule 3.29 as amended is set forth in the opinion at 739 and is as follows: 'When a separate trial is had before the Court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, RSMo, V.A.M.S., unless specifically so designated by the Court in the judgment entered. However, when a separate trial is had before the Court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal within the meaning of Section 512.020 RSMo, V.A.M.S., unless the Court orders it entered as an interlocutory judgment to be held in abeyance until other claims, counterclaims or third-party claims are determined.'

The court then held: 'It is perfectly clear that the counterclaim of Starr against the plaintiff was one 'arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case * * *.' All the claims arose out of one automobile collision and the ensuing assertions of negligence, pro and con. If the trial court intended the order of dismissal to be a final judgment for the purposes of appeal it should have 'specifically so designated' it. This discretion rests in the trial court, not in this court. Pizzo v. Pizzo, Banc, 365 Mo. 1224, 295 S.W.2d 377, 380. Not having done so, this appeal is premature.'

Pausing here for a moment, it is to be noted that the court in Dotson was dealing with a dismissal of a claim which arose out of the same transaction (collision) alleged in plaintiff's petition. In the instant case, plaintiffs' claim against the several defendants is also premised on one transaction--a wrongful foreclosure, and the order appealed from was also the dismissal of a claim.

Of particular significance is the final paragraph of Dotson wherein the court said, loc. cit. 739: 'We shall dismiss this appeal, but since the order appealed from has remained interlocutory, the trial court may now exercise its discretion and, if it so chooses, enter an order by way of amendment providing that its order heretofore entered dismissing the counterclaim of the third-party defendant against plaintiff is thereby specifically designated as 'a final judgment for purposes of appeal within the meaning of Section 512.020 RSMo, V.A.M.S."

Before proceeding with cases which have followed Dotson, it is to be noted that the rationale of the court with respect to the propriety of the dismissal of Starr's counterclaim recognizes that, if the dismissal was erroneous, the trial of the remainder of the case without the counterclaim might well prejudice a determination of the other issues. Apparently this concept was part of the reason for adopting the rule because the authority of Dotson was a member of this court at the time amended rule 3.29 was adopted and Dotson was decided approximately two years later.

In the instant case it seem obvious that if the order dismissing defendant Edgar is erroneous a trial of plaintiffs' claim without the presence of Edgar might well prejudice a determination of the issue of the alleged wrongful foreclosure. Furthermore, plaintiffs will never be afforded the right to try their case against all the defendants against whom they have a right to proceed under the law in one trial. It is observed that the court in Dotson believed so strongly in its interpretation of rule 3.29 as amended (now rule 81.06) that it invited the trial court to amend its prior order of dismissal so as to designate it to be final for purposes of appeal under amended rule 3.29 in order that an appeal could thereafter be taken.

State ex rel. Schweitzer v. Greene, 438 S.W.2d 229 (Mo.banc 1969), was a prohibition action filed by Schweitzer to prohibit the circuit judge from taking any further action against him in the underlying case of Betty and Robert Langley vs. Majorie Patterson and Dr. Schweitzer. The circuit court had previously sustained Schweitzer's motion to dismiss the Langleys' claim against him for failure to state a claim. Thereafter the Langleys filed an amended petition to which Schweitzer filed a motion to dismiss which was overruled. In the prohibition action, Schweitzer contended the dismissal of plaintiffs' petition was a final appealable order when entered and was therefore res judicata. Respondent contended the first dismissal order was not a final appealable judgment because the case had not been disposed of as to codefendant Patterson.

In holding that the first order...