Opinion
No. 12,797.
Filed February 18, 1927.
1. APPEAL. — No final judgment where issue as to one defendant not disposed of. — There was no final judgment from which an appeal could be taken where the action was against three defendants and judgment in favor of two of them was rendered on their demurrers to the complaint, but no disposition was made of the issue as to the other defendant. p. 614.
2. APPEAL. — Appeal must be dismissed where judgment did not dispose of the issue as to all parties. — An appeal must be dismissed where judgment was rendered in favor of two defendants on their demurrer to the complaint but no disposition was made of the issue as to another defendant that had not appeared to the action. p. 614.
From Howard Circuit Court; John Marshall, Judge.
Action by Roy Bowen and another against the Kokomo Omnibus Company and others. From a judgment on sustaining demurrers to the complaint on behalf of part of the defendants, the plaintiffs appeal. Appeal dismissed. By the court in banc.
Harness Harness, for appellants.
Bell, Kirkpatrick, McClure Elliott, for appellees.
On July 2, 1926, appellants filed their amended complaint against appellee Kokomo Omnibus Company and two others. The defendants, other than the omnibus company, filed their separate and several demurrers to this complaint. These demurrers were sustained, and appellants refusing to plead further, it was on said day adjudged and decreed that the plaintiffs take nothing and that the "defendants" recover their costs. The errors assigned relate to the action of the court in sustaining said demurrers.
The three defendants below are made appellees in this court, and appellees, other than the omnibus company, have filed a motion to dismiss the appeal on the ground that the 1, 2. cause was not disposed of as to all of the parties below, in that, no final judgment was rendered as to the omnibus company. While the judgment recites that the "defendants" recover their costs, it is clear from an examination of the whole record that the judgment appealed from did not undertake to settle any issue between appellants and the omnibus company. In so far as the record shows, the omnibus company had not entered any appearance in the cause. It filed neither demurrer nor answer. No issue of law or fact was presented as to it, and it is not to be presumed the court, on sustaining the demurrers of the other defendants and in rendering judgment on their demurrers, intended that such judgment should dispose of the cause as to the defendant who had neither demurred nor answered. So construing the record, we hold there has been no judgment rendered as to the omnibus company, and that the appeal must for that reason be dismissed.
Appellants before appealing must take such further action as will dispose of the cause as to the omnibus company.
Appeal dismissed.
Dausman, J., absent.