Opinion
Nos. 28744 — 28746.
November 17, 1953.
APPEAL FROM THE CIRCUIT COURT, ST. LOUIS COUNTY, AMANDUS BRACKMAN, J.
Gleick Strauss, Harry S. Gleick, St. Louis, for appellant.
Ziercher Tzinberg, Erwin Tzinberg, Clayton, Correnti, McKee, Rosenblum, FitzGibbon Goldenhersh, St. Louis, for respondents.
This is an equitable mechanic's lien action brought under Section 429.270 RSMo. 1949, V.A.M.S., by Ladue Contracting Company, a corporation, to obtain judgment against Land Development Company for certain grading and paving work done by plaintiff and to have its claim adjudicated a mechanic's lien against the premises on which the work was done, and to have the rights of certain lien claimants determined. Defendants are the corporation which originally owned and developed a certain tract of land, the twelve couples (husbands and wives) who now own the land, buildings and improvements thereon, various trustees and corporate beneficiaries in various deeds of trust on the properties and certain subcontractors who have lien claims against certain of the lot owners. Nine of the twelve couples of individual defendants filed three separate motions to dismiss plaintiff's petition on the ground that "the petition fails to state a claim upon which relief can be granted." After a hearing the circuit court sustained the three motions and entered an order dismissing the petition "as to said defendants." Plaintiff filed three separate motions to set aside and vacate the order of dismissal in each instance. Upon the overruling of these motions plaintiff took three separate appeals to this court from the order sustaining the motions to dismiss and from the order overruling plaintiff's motion to set aside and vacate. The three appeals have been consolidated by stipulation and are now before us as one appeal.
The transcript of the record does not show any disposition of the case as to defendant Land Development Company, a corporation, the three couples of individual defendants who did not join in the motions, the trustees or beneficiaries of the deeds of trust, or the individual or partnership lien claimants. In view of this situation it occurred to the court at the time of argument that the appeal might be premature, a question of which we are bound to take notice even though the point is not raised by either of the parties. Poston Springfield Brick Co. v. Brockett, Mo.App., 183 S.W.2d 404.
A judgment in order to be final and appealable must dispose of all parties and all issues in the cause, Hanover Fire Ins. Co. v. Commercial Standard Ins. Co., Mo.Sup., 215 S.W.2d 444, leaving nothing for future determination. Poston Springfield Brick Co. v. Brockett, supra. In this case no final appealable judgment has been rendered. The cause remains pending and undisposed of as to the several defendants above indicated. See Hill-Behan Lumber Co. v. Hammer Dry Plate Co., Mo.App., 162 S.W.2d 348. No disposition having been made of certain parties defendant, these appeals should be dismissed, as premature, Downey v. United Weatherproofing, Mo.Sup., 241 S.W.2d 1007; Thomas v. Orrick Special School Dist., Mo.App., 246 S.W.2d 523; Raleigh Co. v. Rouse, Mo.App., 204 S.W.2d 438; Kresge Co. v. Shankman, Mo.App., 194 S.W.2d 716, and the Commissioner so recommends.
The foregoing opinion of HOUSER, C, is adopted as the opinion of the court.
The appeals are, accordingly, dismissed.
BENNICK, P. J., ANDERSON, J., and LAWRENCE HOLMAN, Special Judge, concur.