Vore v. Roderick

616 S.W.2d 130, 1981 Mo. App. LEXIS 2720

• Court: Missouri Court of Appeals
• Decided: May 5, 1981
• Docket: No. 12005
• Status: Published

Opinions

GREENE, Presiding Judge.

This is a suit for specific performance of a real estate contract, and in the alternative, for $24,000 damages for breach of the contract. Defendant John Roderick counterclaimed for house and pasture rental, which he alleged was not paid by plaintiffs. The case was court-tried. At the conclusion of the testimony, the trial judge sustained a motion for directed verdict in favor of defendant Opal Roderick, and took the balance of the dispute under advisement. Later, the trial court issued a memorandum opinion in which the court discussed the failure of the parties to prove their allegations both on the petition and the counterclaim. At the conclusion of the memorandum, the following entry appears:

“JUDGMENT AND DECREE

This court finds all issues for defendants’ and against plaintiffs’ on their petition. Court finds all issues for plaintiffs’ on Defendant John Roderick’s counterclaim. Costs ordered assessed as follows: Two thirds of said costs assessed against plaintiffs’ and one third against Defendant John Roderick.

While it is obvious from reading the learned trial judge’s memorandum opinion that his intent was to dismiss plaintiffs’ petition and defendant John Roderick’s counterclaim, for the reason that the respective parties failed to prove their case, the purported judgment did not do so. The judgment entry, as written, is incomplete for that reason, and does not constitute a final judgment from which an appeal would lie. See Cochran v. DeShazo, 538 S.W.2d 598, 600-601 (Mo.App.1976).

The cause is remanded to the trial court for entry of a final judgment.

All concur, except FLANIGAN, J., dissents and files opinion.