Malone v. Mississippi State Highway Commission

SMITH, Justice: Appellant, Thomas V. Malone, brought an action for libel against Mississippi State Highway Commission, V. W. Guy and United States Fidelity and Guaranty Company in the Circuit Court of the First Judicial District of Hinds county. He alleged that the defendants were jointly and severally liable to him for damages. The defendants answered, the Highway Commission setting up in its answer in bar of the suit against it that, as an instrumentality of the State, it was not subject to suit in a tort action of the type brought against it. The matter alleged to bar the suit was heard and the position of the Highway Commission was sustained by the trial court. Malone gave notice of appeal from the action dismissing Highway Commission and filed an appeal bond. No disposition of the case was made as to defendants Guy and United States Fidelity and Guaranty Company. Highway Commission, the only appellee, has raised the question of jurisdiction and requests dismissal of the appeal as premature. In Eubanks v. Aero Mayflower Transit Company, 253 Miss. 159, 175 So.2d 169 (1965), this Court said that, in order to be appealable, The judgment must dispose of the cause as to all of the parties, reserving no further questions for future determination. (Citing authority). Since a judgment is not final which settles a case as to a part only of the defendants, an order which [49] dismisses the suit as to a part only of them, all of whom are charged to be jointly liable, is not a final judgment from which an appeal will lie, while the case remains undisposed of in the lower court as to the other defendants. (253 Miss. at 167, 175 So.2d at 172). See also Wall v. City of Gulfport, 252 So.2d 891 (Miss.1971) and Bradley v. Holmes, 242 Miss. 247, 134 So.2d 494 (1961). The request of the Highway Commission to dismiss the attempted appeal as premature will be granted. Appeal dismissed without prejudice. GILLESPIE, C. J., and PATTERSON, INZER and SUGG, JJ., concur.