Heimburger ex rel. Hulsey v. State Highway Commission of Missouri

DOWD, Presiding Judge. Plaintiffs appeal from the trial court’s dismissal of their personal injury claims against one of three co-defendants for failure to state a claim upon which relief could be granted. Appellants’ action arose from a vehicular accident on May 5, 1978 which appellants allege was caused, in part, by the condition of the roadway maintained by respondent. The trial court dismissed appellants’ claims against respondent upon the basis that the doctrine of sovereign immunity prohibited the claims. Appellants’ petition was in six counts, two of which were directed to respondent. Two other counts were directed to the contractor who appellants claim is responsible for the condition of the roadway. The two remaining counts were directed to the driv [171] er of the vehicle involved in the collision with the vehicle driven by one of the appellants and in which the other appellant was a passenger. The trial court’s order challenged by appellants’ appeal dismissed appellants’ petition only as to respondent, not as to respondent’s co-defendants. The claims alleged against all three co-defendants in appellants’ petition arise from the same transaction, occurrence, or subject matter. However, the transcript is devoid of any designation of the dismissal of claims against respondent as final by the trial court. Therefore, the separate judgment on the claims against respondent are not deemed a final judgment for purposes of appeal. Rule 81.06; Scheibel v. Hillis, 570 S.W.2d 724, 726[1, 2] (Mo.App.1978). Appeal dismissed as untimely. CRIST and REINHARD, JJ., concur.