Opinion
No. 49242.
May 14, 1985.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, PHILIP J. SWEENEY, J.
Richard Boardman, St. Louis, for defendants-appellants.
Daniel E. Wilke, Clayton, for plaintiffs-respondents.
This action originated as a simple suit on a promissory note. Appellants, who are two of the five defendants in the original action, filed a three-count counterclaim seeking a equitable accounting of the value of personal property securing the note, damages for tortious interference with contract, and for specific performance of an agreement to defer payments of principal and interest. Subsequently, these appellants dismissed Count II of the counterclaim. The trial court sustained a motion for summary judgment on Count III of the counterclaim. Plaintiffs' petition and Count I of the counterclaim remain pending.
Rule 81.06, in pertinent part, provides: When a separate trial is had before the court with a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case, the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of § 512.020, RSMo. unless specifically so designated by the court in the judgment entered.
The claims asserted in the plaintiffs' petition and in Count I of the counterclaim, at least in part, arise from the same transaction, occurrences and subject matter as the claims asserted in Count III of the counterclaim. The court did not designate its order as a final judgment for purposes of appeal. Accordingly, this appeal is premature and we are without jurisdiction.
Appeal dismissed without prejudice.
PUDLOWSKI, P.J., and KAROHL, J., concur.