Opinion
No. 21437.
April 2, 1951.
APPEAL FROM THE CIRCUIT COURT, DEKALB COUNTY, FRED H. MAUGHMER, J.
Frank L. Pulley, Cameron, Max R. Wiley, Maysville, for appellant-respondent.
John J. Robison, Harold Miller, Maysville, for appellants-respondents.
Plaintiff's petition contained two counts. The first count alleged that she was lawfully married to one Frank W. Graham September 4, 1922; that he died January 23, 1949; that defendant Bottorff is the duly appointed administrator with will annexed of his estate; that the other defendants are children and heirs at law of said Graham; that on January 5, 1935, she and her husband entered into a post-nuptial agreement settling their property rights; that said agreement was procured by fraud and prayed for its cancellation. The second count incorporated the material allegations of the first count and sought to set aside a divorce decree secured by Frank Graham in Reno, Nevada, on February 4, 1944, on the ground that said decree was procured by fraud practiced on the court of Nevada, in that said Frank Graham was not a bona fide resident of the State of Nevada at that time as required by the statutes of that state. Defendants filed separate motions to dismiss each count. As to the first count the motion charged that it did not state a cause of action against defendants; that it appeared on the face of the petition that said action was barred by the statute of limitations, and also that plaintiff was estopped to prosecute said action. As to the second count, the motion charged that it did not state a cause of action against defendants; and that it appeared on the face of the petition that plaintiff was guilty of laches and was estopped to prosecute said action. The court overruled the motion attacking count one but sustained the motion as to count two.
Plaintiff appealed from the order sustaining the motion to dismiss the second count and defendants appealed from the order overruling the motion to dismiss the first count.
By stipulation the appeals have been consolidated, and the costs of preparing the transcript are to be shared equally by plaintiff and defendants. The cause will be disposed of by one opinion.
However, we must first consider the question whether any final appealable judgment or order has been entered in the cause. While that issue has not been raised, it is our duty to determine that question because if no final appealable judgment or order has been entered, the appeals are premature and must be dismissed. Deeds v. Foster, Mo.Sup., 235 S.W.2d 262, 265.
We shall first consider the right of defendants to appeal from the order overruling their motion to dismiss the first count. The right of appeal is purely statutory, and where the statutes do not give such right it does not exist. Tevis v. Foley, 325 Mo. 1050, 30 S.W.2d 68; Shoush v. Truitt, Mo.App., 235 S.W.2d 859. Sec. 126, Civil Code, Laws 1943, p. 390, Sec. 512.020, R.S. 1949, provides for an appeal "from any final judgment in the case", and from certain specified interlocutory orders, not of interest here; but it does not provide for an appeal from an order overruling a motion to dismiss a petition. Sec. 126, supra, is a substantial reenactment of Sec. 1184, R.S. 1939, in so far as the right of appeal is concerned, and there are many cases cited under that section to the effect that an appeal will not lie from an order overruling a demurrer (motion to dismiss under new civil code) because such order is not a "final judgment" It does not dispose of any issues on the merits. When defendants' motion was overruled they could refuse to plead further and permit judgment to go against them, or they could plead to the petition, try the case on the merits, and if judgment went against them they could then appeal from the final judgment without having prejudiced their right to raise the question on appeal whether the petition stated a good cause of action, because this section provides specifically that a failure to appeal from "any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case."
It follows that the appeal of the defendants from the order overruling their motion to dismiss the first count of the petition is premature and should be dismissed. See Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333, 8 A.L.R.2d 710.
We now consider the question of the right of plaintiff to appeal, at this time, from the order sustaining the motion to dismiss the second count of her petition, since the first count remains undisposed of. In other words, was there a final judgment from which plaintiff could appeal? It is uniformly held that "For the purposes of an appeal a judgment must be a final judgment and it must ordinarily dispose of all parties and all issues in the case." Deeds v. Foster, supra, 235 S.W.2d 265, citing an array of cases. In that case plaintiff's petition contained two counts and defendants' answer contained a counterclaim, and at the close of plaintiff's evidence the court sustained a motion for directed verdict in favor of defendants on both counts and entered judgment accordingly. However, the judgment did not dispose of defendants' counterclaim and the Supreme Court held that plaintiff's appeal was premature because the judgment had not disposed of all the issues and therefore was not a final judgment. We think that ruling is controlling in this case. See, also, Severs v. Williamson, Mo.App., 198 S.W.2d 368.
There can be only one final judgment in a case and it must dispose of all parties and all issues, except where a separate trial is ordered by the court and a separate judgment is entered as provided by Supreme Court Rule 3.29. Sec. 1236, R.S. 1939, R.S. 1949, § 511.020, provides: "A judgment is the final determination of the right of the parties in the action." (Italics supplied.) This statute was neither repealed nor changed by the new civil code.
It is our conclusion that there has been no final judgment disposing of all the issues in this case, and therefore plaintiff's appeal is premature.
We make this observation that if plaintiff's petition had contained but one count and a motion to dismiss had been sustained, then the plaintiff would have had the right to appeal if he did not desire to plead further. Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907. However, that is not the situation confronting us.
We hold that the appeals by the plaintiff and by the defendants are premature and should be dismissed. It is so ordered.
All concur.