W. T. Rawleigh Co. v. Rouse

• Decision Date: 16 September 1947
• Docket Number: 27171
• Citation: 204 S.W.2d 438
• Parties: W. T. RAWLEIGH CO. v. ROUSE et al
• Court: Missouri Court of Appeals

204 S.W.2d 438

W. T. RAWLEIGH CO. v. ROUSE et al

No. 27171

Court of Appeals of Missouri, St. Louis

September 16, 1947

'Not to be reported in State Reports.'

Frank Howell and Edgar B. Woolfolk, both of Troy, for appellant.

Creech & Creech, of Troy, for respondent.

OPINION

WOLFE PER CURIAM

This action was brought in Lincoln County against four defendants by W. T. Rawleigh Company, an Illinois corporation. It is a suit for a balance owing on a written contract of purchase signed by Edward Rouse as the purchaser and by the other three defendants as sureties with the written surety agreement a part of the contract of purchase. One of the sureties is defendant Sarean Snead, and she filed a motion in the trial court to dismiss plaintiff's second amended petition as to her. The court heard the motion and ordered the cause dismissed as to defendant Sarean Snead. The court later also denied a motion of plaintiff for a new trial and a rehearing on the motion to dismiss, and from the action of the trial court in dismissing its petition as to Sarean Snead with prejudice the plaintiff seeks to appeal.

There has been no disposition of the case as to the remaining three defendants and to this the respondent directs the attention of this court in a motion to dismiss the appeal.

The right of appeal is statutory. Harrison v Missouri-Kansas-Texas R. Co., Mo.Sup., 87 S.W.2d 169; Bueker v. Aufderheide et al., Mo.Sup., 111 S.W.2d 131; S. S. Kresge Co. v. Shankman, Mo.App., 194 S.W.2d 716. And is covered by Section 126, Civil Code, Laws of Missouri 1943, p. 390, Mo.R.S.A. § 847.126. This section now in force repealed but made no basic change in Section 1184, R.S.Mo.1939, Mo.R.S.A. As far as actions of this nature are concerned the law remains the same as it has been in the past, in that it provides that appeal shall be had from a final judgment. Section 1236, R.S.Mo. 1939 Mo.R.S.A., defines a judgment as follows: 'A judgment is the final determination of the right of the parties in the action.' There is in an action of this nature no final judgment from which an appeal can be taken when there is no final determination of the cause as to all the parties. Harrison v. Missouri-Kansas-Texas R. Co., Mo.Sup., 87 S.W.2d 169; Ray v. Missouri Christian College et al., Mo.App., 93 S.W.2d 1030; Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614; Bueker v. Aufderheide et al., Mo.Sup., 111 S.W.2d 131; Webster v. Sterling Finance Co., Mo.Sup., 1653

S.W.2d 688; Mansfield v. Meade, Mo.App., 194 S.W.2d 544, 545; S. S. Kresge Co. v. Shankman, Mo. App., 194 S.W.2d 716.

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