Opinion
No. 7126.
October 15, 1952.
APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY, REX V. McPHERSON, J.
Elmer Wadlow, Ash Grove, William A. Wear, Springfield, for appellant.
Stemmons Stemmons, Mount Vernon, for respondent.
This suit was begun by the filing of a petition in ejectment with a prayer for damages for retention of a school house, formerly in the Hopewell School District, which had later been attached to Ash Grove School District R-4. Section 165.300 RSMo 1949, V.A.M.S. The answer admitted the incorporation of plaintiff and denied all other allegations in the petition.
As a cross action, it alleged that defendant owned the property by virtue of a certain deed, executed in 1904, in which deed it was stipulated that the fee was granted for such time as the real estate "shall be used for school site, and whenever it ceases to be used for school purposes, said land should revert to the grantor, heirs or assigns."
It was then alleged that plaintiff had long ago abandoned and ceased to use the land for school purposes, that "the land and buildings therein situate have reverted in accordance with the terms of said deed", and that the plaintiff was then offering to sell the school building at public auction. Defendant prayed the court to ascertain and determine the title to said land; that plaintiff be decreed to have no interest in the land and that the defendant be found to be "the owner of the fee simple title thereof" or a tenant in common with others. Evidence was offered to support these allegations.
The case was tried by the court and the judgment recites that the court,
"doth find the issues against the plaintiff on the petition, and for the defendant on the answer.
"It is therefore ordered, adjudged and decreed by the court, that plaintiff has no right, title or interest in the land described in the petition."
A motion for new trial was filed by plaintiff-appellant, was overruled and the case is here on appeal. While the matter is not raised, it is our duty to determine whether a final appealable judgment has been entered in the cause. Deeds v. Foster, Mo.Sup., 235 S.W.2d 262.
Under the statute, Section 512.020 RSMo 1949, V.A.M.S., in a case like this, an appeal can only be taken from a final judgment, that is, a judgment in which the case is disposed of as to all the parties and all the issues. This judgment does not meet those requirements. The court did not dispose of defendant's cross-action to quiet the title. Deeds v. Foster, supra; Ridenour v. Duncan, Mo.Sup., 246 S.W.2d 765; Kidd v. Katz Drug Co., Mo.App., 244 S.W.2d 605; Farmers Mutual Hail Ins. Co. v. Garnand, Mo.App., 238 S.W.2d 437.
This appeal must therefore be dismissed, so the trial court can, upon a further hearing, dispose of all the issues.
Since this case was tried, Division No. 1 of the Supreme Court has handed down the case of Board v. Nevada School District. Mo.Sup., 251 S.W.2d 20, which should be considered in the retrial of the issues and in determining the jurisdiction of an appeal, if one should be taken.
Appeal dismissed.
BLAIR and McDOWELL, JJ., concur.