Summary
holding judgment was unappealable because a counterclaim remained pending and the trial court did not invoke the exception stated in Rule 74.01(b)
Summary of this case from Ackerson v. Runaway II, Inc.Opinion
No. 18402.
June 10, 1993. Rehearing Denied July 6, 1993.
APPEAL FROM THE CIRCUIT COURT, GREENE COUNTY, THOMAS K. McGUIRE, JR., J.
Calvin Allen, pro se.
Mark Fitzsimmons, John Banning, Fitzsimmons, Schroeder Nelson, Springfield, for defendants-respondents.
Plaintiff's amended petition was dismissed and he appeals. No order was made regarding a counterclaim filed by defendant Barge.
Respondents filed a motion to dismiss the appeal, contending that there was no judgment entered from which an appeal could be taken because the counterclaim remains pending and the court did not make "an express determination that there is no just reason for delay." Rule 74.01(b). In his response to that motion plaintiff states that "[i]t is clear from the record that this partial judgment does not dispose of all the issues and all the parties."
Except for a few types of cases covered elsewhere, § 512.020, RSMo 1986, provides for when appeals may be taken. It is applicable here. Generally, for there to be an appealable judgment under that section all claims between the parties must be determined. Rule 74.01(b); Ritter v. Aetna Cas. Sur. Co., 686 S.W.2d 563, 564 (Mo.App. 1985). Cf. also Fairfield Square Dev. Co. v. Rogalski, 767 S.W.2d 626, 628 (Mo.App. 1989).
The trial court did not seek to invoke the exception stated in Rule 74.01(b). Respondents' motion to dismiss the appeal is well taken. There is no judgment here from which an appeal will lie.
The appeal is dismissed.
FLANIGAN and GARRISON, JJ., concur.