Opinion
No. 28419.
October 21, 1952.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, HARRY F. RUSSELL, J.
Fred Armstrong and Richard A. Hetlage, of St. Louis, for appellant.
Boyle G. Clark and E. Massey Watson, of Columbia, and Harry C. Avery, of St. Louis, for respondent E. W. Stephens Pub. Co. Clark Becker, of Columbia, of counsel.
This is an action by plaintiff, Samuel C. Stout Company, Inc., to recover from defendant, Inter-City Mfg. Company, Inc., the sum of $300 alleged to be the balance due plaintiff under the terms of a contract between the two for the sale by plaintiff to defendant of a certain printing press located on the floor of the plant of the E. W. Stephens Publishing Company in Columbia, Missouri.
Attached to plaintiff's petition as an exhibit was a copy of memorandum written in confirmation of the contract whereby defendant had agreed to pay plaintiff the sum of $650 for the press on the floor of the Stephens Company in Columbia, $350 to be paid with the order, and the balance of $300 to be paid upon delivery of the press to defendant's place of business in the City of St. Louis. It was recited in the contract that the press was available for immediate shipment.
Defendant filed an answer admitting the execution of the contract, and alleging that plaintiff and the Stephens Company had arranged between themselves that the latter should prepare the press for shipment, and that the Orscheln Brothers Truck Lines, Inc., of Moberly, Missouri, should be employed to transport the press from the Stephens Company's plant in Columbia to defendant's place of business in St. Louis. Defendant further alleged that in carrying out this arrangement the press was prepared for shipment, transported, and delivered in such a manner that it was damaged to the point that it would not function as a press and was wholly unsuited for the purposes for which it was intended. By reason of such fact defendant denied that it was indebted to plaintiff for the balance of the purchase price in the sum of $300.
Along with its answer defendant filed what was denominated a counterclaim against plaintiff and a joint cross-claim against E. W. Stephens Company and Orscheln Brothers Truck Lines, Inc.
After alleging that the two latter companies were necessary parties for the granting of complete relief in the determination of the controversy, defendant alleged that it was entitled to recover from the plaintiff and such two companies the aggregate amount of $903.08, comprising the sum of $350 paid plaintiff upon defendant's acceptance of its offer together with certain enumerated items of expense incurred by defendant in connection with the shipment and delivery of the press.
In due time Orscheln Brothers Truck Lines, Inc., filed its answer to defendant's cross-claim, denying all responsibility for the damage to the press.
The E. W. Stephens Company, instead of answering, filed a motion to dismiss the cross claim against it upon the grounds (1) that inasmuch as plaintiff had refused to amend its petition and make the Stephens Company a defendant in the case, defendant could not prosecute any claim it might have against the Stephens Company in this action; and (2) that the cross-claim failed to state a claim upon which relief could be granted against the Stephens Company.
The court sustained the motion to dismiss upon both of the assigned grounds. Defendant thereafter gave notice of appeal, and now undertakes to have this court review the action on the motion to dismiss.
At the outset of the case we are confronted with the suggestion that the appeal is premature and for that reason should itself be dismissed.
It is fundamental that the right of appeal exists only as provided by statute: and while appeals are favored, and statutes granting the right of appeal are to be liberally construed, there is no room for indulging liberality unless there is some reasonable statutory basis for the exercise of the right which is being claimed in the particular case.
In this instance the only pretense for defendant's right of appeal from the order sustaining the Stephens Company's motion to dismiss defendant's cross-claim against it is that the order constituted a final determination of the question of defendant's right to prosecute its cross-claim against the Stephens Company in connection with the disposition of the pending case.
Even though it is true that the order did bespeak finality with respect to the question of defendant's right to prosecute its cross-claim against the Stephens Company as one of the issues in the pending action, it was still not a "final judgment in the case" within the meaning of section 512.020 RSMo 1949, V.A.M.S. For judgment to fall within such category, absent some special dispensation by statute or rule of court, it must be one disposing of the whole case as to all the parties and leaving nothing for future determination. This order in no sense met that test, but instead left many issues to be determined as between the several parties to the case. Had the court ordered a separate trial of the cross-claim and then had heard the same to a conclusion, it might, under the authority of Rule 3.29, have ordered that a separate judgment be entered which should be deemed a final judgment for the purposes of appeal, but it did not do so, nor was it requested to do so. In the absence of such procedure the order was not reviewable on appeal until the disposition of the whole case as to all the issues and all the parties; and the appeal which was taken short of that eventuality was consequently premature. Kidd v. Katz Drug Co., Mo.App., 244 S.W.2d 605; Bennett v. Wood, Mo.Sup., 239 S.W.2d 325.
It follows that the appeal should be dismissed, and it is so ordered.
ANDERSON and LADRIERE, JJ., concur.