Anchor Motor Freight, Inc. v. Oliver

CLAY, Commissioner. These cases are before us on motions to ■dismiss the appeals. The motions must be sustained on a ground not presented by the parties. The controversy concerns claims for ■damages arising from a collision involving three trucks. Ralph and Scott Oliver sued. Anchor Motor Freight, Inc., Robert Chit-wood, its driver, J. R. Cain, and Lucas Cole, the driver of Cain’s truck. Anchor counterclaimed against the Olivers and cross-claimed against Cain and Cole, who cross-claimed against Anchor and its driver. On the trial at the close of all the evidence, Cain’s motion for a directed verdict was sustained. The jury returned a verdict in favor of the Olivers against Anchor only, without mention of the other defendants, Chitwood and Cole. The judgment, entered on this verdict February 16, 1957, decreed: (1) the Oli-vers recover $3,000 from Anchor, (2) their complaint be dismissed as to. defendants Cain and Cole, (3) the cross-claim of Anchor and Chitwood against Cain and Cole be dismissed. The judgment failed to dispose of the claim of the Olivers against Anchor's driver, defendant Chitwood. This is the judgment from which two original appeals and a cross-appeal are prosecuted. This judgment is not final, and therefore is not appealable by any party. Civil Rule 54.02 provides that any order which adjudicates less than all claims in the action is subject to revision and is not a final adjudication as to any claims. The liability or non-liability of defendant Chit-wood is one of the significant issues involved in these appeals. Since the judgment fails to adjudicate the Olivers’ claim against him, the judgment is not final and therefore may not be appealed. See Clay, CR 54.02 (1957 Supplement), Comment 3, (pages 66 and 67); Turner Construction Co. v. Smith Brothers, Inc., Ky., 295 S.W.2d 569; Center v. American Hardware Mut. Ins. Co., Ky., 303 S.W.2d 324. In the light of this ruling, it is apparent that the procedural objections heretofore raised on the motions to dismiss have become moot. The original appeals and the cross-appeal are dismissed.