Opinion
May 22, 1970.
Appeal from the Jefferson Circuit Court, Chancery Branch, Second Division, Marvin J. Sternberg, J.
Guy C. Shearer, R. Davis McAfee, Louisville, for appellant.
James T. Carey, Carey, O'Bryan, Duffy McDonald, Louisville, for appellee.
Carl F. Huff brought action against Wood-Mosaic Corporation asserting various claims for money under a contract relating to the sale by Huff to Wood-Mosaic of lumber produced at Huff's band mill. Wood-Mosaic counterclaimed for damages for breach of the contract. Summary judgment was entered which recited that the action came on to be heard on defendant's motion for a summary judgment dismissing "that part of the plaintiff's complaint which claims damages by reason of the alleged requirement of the defendant to purchase all of the plaintiff's production of #2 common and better grades of lumber," and which adjudged that the complaint be dismissed "insofar as it seeks to recover damages from the defendant for failure to purchase all lumber of #2 common and better grades." Huff has undertaken to appeal from that judgment.
Plainly the judgment did not adjudicate all of the claims in the action. Therefore, under CR 54.02, in order for the judgment to be appealable it was necessary that the trial court make a determination that there was no just reason for delay, and to recite in the judgment such determination and that the judgment was final. There were no such determination and recitation here. Hence the judgment is not appealable. See Center v. American Hardware Mutual Insurance Company, Ky., 303 S.W.2d 324; Jessup v. Bard, Ky., 314 S.W.2d 524; Moriarty v. Dowling, Ky., 318 S.W.2d 38; Steely v. Hancock, Ky., 317 S.W.2d 171; Signer v. Arnold, Ky., 436 S.W.2d 493. This court on its own motion will raise the issue of want of jurisdiction if the order appealed from lacks finality. Peters v. Board of Education of Hardin County, Ky., 378 S.W.2d 638.
The appeal is dismissed.
All concur, except NEIKIRK, J., who did not sit.