Leonard v. Payne

CRIST, Judge. Appellant appeals the dismissal of her claim against respondent William Payne for injuries sustained in an automobile accident. We dismiss the appeal for want of a final judgment. The petition alleged claims against three defendants arising from an accident that occurred on a section of road undergoing repair. Counts I and II, brought against Patrick O’Brien, the driver of the car, were dismissed upon settlement. Counts III and IV, brought against Leonard Barnhart, are still pending. Counts V and VI, brought against William Payne, were dismissed upon that defendant’s motion. Appellant appealed the dismissal. Respondent’s motion to dismiss the appeal was taken with the case. The right of appeal is statutory. An appeal must be brought from a final judgment which disposes of all parties and all issues in the litigation. Harris v. Union Electric Co., 685 S.W.2d 607, 610[2, 4] [12] (Mo.App.1985). This rule avoids the piecemeal presentation of a case upon appeal. Reeves v. Smith, 621 S.W.2d 534, 535 (Mo.App.1981). The order of the court below did not purport to dispose of all issues or parties in the case. Two counts of the petition are still pending against a third defendant. The judgment is not final, and this court therefore lacks jurisdiction. Harris, 685 S.W.2d at 610[3]. We reject appellants’ suggestion that under the comparative fault system recently adopted in Missouri, [See Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983)] the dismissal of one of a set of multiple defendants should be considered a final, appealable order. Appeals are a creation of statute, and nothing in the statute creates such a right of appeal. Section 512.020, RSMo.1978. Appeal dismissed. DOWD, P.J., and CRANDALL, J., concur.