Summary
holding that an order that did not address all claims for relief was not a final judgment and that an appeal from such an order was due to be dismissed
Summary of this case from State v. $649Opinion
77-491.
December 22, 1978.
Appeal from the Circuit Court, DeKalb County, Randall L. Cole, J.
Loma B. Beaty, Fort Payne, for appellant.
Beck Beck, J.C. Kellett of Kellett Gillis, Fort Payne, for appellee.
This appeal is to be dismissed because the judgment appealed from is not a final order under Rule 54 (b) ARCP.
Plaintiff Everett filed a civil action in the Circuit Court of DeKalb County against defendants Goza and Bonnie Mills, Inc. seeking specific performance of a contract to convey real property and damages. Defendants demanded a jury trial, and in an amended answer counterclaimed against Everett. The defendants filed a motion for summary judgment, which the court denied. Plaintiff's motion to strike the defendants' jury demand was granted as to the claim for specific performance. The trial judge entered an order on his bench notes on January 30, 1978, which read as follows:
"The court this date entered a ruling in favor of the plaintiff in regard to the non-jury issue of specific performance. Remaining issues are to be tried to a jury. See order in file. Randall L. Cole, Judge."
When more than one claim for relief is presented in an action, an order entered upon less than all of the claims is not a final, appealable order unless the judge makes an express determination that there is no just reason for delay pursuant to Rule 54 (b) ARCP. No such determination is found in the record.
The claim for monetary damages was not disposed of, but that issue was specifically reserved "to be tried to a jury." The appeal, therefore, must be dismissed. Chambers v. Chambers, 356 So.2d 634, 12 ABR 872 (Ala. 1978).
APPEAL DISMISSED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.