McVey v. Barker

88 Mo. App. 515, 1901 Mo. App. LEXIS 86

• Court: Missouri Court of Appeals
• Decided: April 23, 1901
• Status: Published

Opinion

BOND, J.

The appeal taken in this cause must be dismissed. The failure of the record, to show some disposition of the cause as to all of the parties defendant before the rendition of a final judgment in favor of one of the defendants, is an insuperable obstacle to the prosecution of an appeal; for there can be only one final judgment in any case. In the one at bar, the court should have withheld the final judgment, after its ruling on the demurrer of the city until the case was ready for judgment against the other defendant, either by a dismissal as to him by plaintiff, or upon a trial, after which a single final judgment could properly have been entered, which would have embraced a finding as to all of the parties. Until that has been done, any appeal is premature. It seems from the briefs on file in this ease, that the court went outside of the allegations contained in the petition and considered the ordinances adopted by the city of Laddonia with reference to the impounding of stock as a part and parcel of the petition. As the matter is not before us for present decision, we refrain from expressing an opinion as to the ruling thus made. It would seem however, that if the petition had incorporated in itself sufficient allegations to show that in the taking of the horses by its marshal the city was exercising a function of government delegated to it hy virtue of its charter, then there could be no liability on the part of the city for'such action in a suit of replevin. Ulrich v. St. Louis, 112 Mo. 138; Jefferson Co. v. St. Louis Co., 113 Mo. 619. However, the appeal in this case was clearly prematurely taken under the authority óf Sater v. Hunt, 61 Mo. App. 228.

It is accordingly dismissed.

All concur.