Massey v. Hamilton

564 S.W.2d 618, 1978 Mo. App. LEXIS 2042

Opinion

DIXON, Judge.

Plaintiff appeals from an order granting summary judgment in favor of the defendant, Lawrence E. Hawkins Contractors, Inc. Plaintiff’s suit for personal injury was against Darrell Ray Hamilton, the driver of a pickup truck involved in a collision with a motorcycle plaintiff was riding. Plaintiff alleged Darrell Ray Hamilton was the agent, servant, and employee of Lawrence E. Hawkins Contractors, Inc., and the trial court, based upon extensive deposition testimony, granted a summary judgment in favor of Lawrence E. Hawkins Contractors, Inc.

The plaintiff’s petition, shorn of the allegations against Lawrence E. Hawkins Contractors, still alleges a cause of action for personal injuries against the individual defendant. That cause of action is still pending in the trial court. It is apparent that the trial court’s order did not dispose of all the issues and all of the parties. Such a judgment is not ripe for appeal. Baumstark v. Jordan, 540 S.W.2d 611 (Mo.App.1976). No attempt was made to have the trial judge denominate the summary judgment as a final appealable order pursuant to Rule 81.06.

This court must order a dismissal of the appeal sua sponte if the judgment is not final. Baumstark v. Jordan, supra. The judgment as to one defendant does not constitute a final appealable order. New Age Federal Savings and Loan Ass’n v. Miller, 461 S.W.2d 876 (Mo.1970); State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487 (banc 1947).

Appeal dismissed.

All concur.