Opinion
No. 21582.
February 4, 1952.
Russell D. Farris, Richmond, Harry A. Hall, Kansas City, for appellants.
Wherritt Sevier, Alan F. Wherritt, and Robert F. Sevier, all of Liberty, for respondents.
This is an action under the declaratory judgment law, RSMo 1949, § 527.010 et seq., V.A.M.S., to test the validity of the consolidation of certain school districts. From an order dismissing their amended petition, plaintiffs have appealed.
The amended petition alleges that plaintiffs are residents, landowners, and taxpayers of School District No. 84, a common school district in Ray County, Missouri; and that plaintiffs bring this action for themselves and all others who care to join with them and as representatives of the qualified voters and property owners in said school district. The defendants named in the petition are the Orrick Special School District of Ray County and Otis L. Chandler, Superintendent of Schools of Ray County.
The amended petition further alleges that by a purported election held March 9, 1950, said School District No. 84 and four other common school districts in Ray County were consolidated with the defendant school district. Plaintiffs then allege that said election was illegal and void for numerous reasons, and pray the court to determine "the rights, status and legal relationship of plaintiffs and defendants and of said common school districts"; to declare, among other things, that the said election was void, that defendant school district has no right, title or interest in and to the property of said common school districts; and to enjoin "the defendants and each of them from interfering with the plan of the Ray County Board of Education, together with such other and further relief as may be proper in the premises."
The record shows that "Orrick Consolidated School District, Number Seven, by its Attorneys," filed a motion to dismiss on the ground that the amended petition failed to state "any cause of action upon which relief can be granted to these plaintiffs," and on other grounds which need not be set forth. The motion to dismiss reads in part as follows: "Comes now the above Orrick Consolidated School District Number Seven, Ray County, Missouri and appearing specially and for this purpose only does move the court to dismiss plaintiff's first amended petition for the following reasons: * * * Wherefore, defendant, Orrick Consolidated School District Number Seven, * * * moves that the petition of plaintiff as against it be dismissed and it have its costs." (Italics ours.) While the record shows that the motion to dismiss was filed by "Orrick Consolidated School District Number Seven," it is also appears that the only school district named as defendant in this cause is "Orrick Special School District." But as indicated above, the motion was sustained and the cause dismissed.
Whatever may be said as to the merits and propriety of the motion to dismiss in view of the recent decisions of our Supreme Court in Spiking School District No. 71, DeKalb County, Missouri et al. v. Purported "Enlarged School District R-II, DeKalb County, Missouri," a Purported Municipal Corporation et al., 245 S.W.2d 13, and Utt et al. v. Oster et al., Mo.Sup., 245 S.W.2d 22, it is apparent from the record that the judgment of dismissal did not dispose of the case as to defendant Otis L. Chandler. The record shows no pleading or appearance by defendant Chandler and no judgment or order of any kind as to such defendant. It has been repeatedly held by our Supreme Court that "a judgment, to be final and appealable, must dispose of all parties and all issues in the cause." Hanover Fire Ins. Co. v. Commercial Standard Ins. Co. et al., Mo.Sup., 215 S.W.2d 444, 445, and cases cited. Here the record shows that the judgment appealed from did not dispose of the cause as to all of the parties. Hence there is no final judgment from which an appeal will lie and the cause is still pending in the circuit court. It follows that plaintiffs' appeal was premature and should be dismissed.
SPERRY, C., concurs.
The foregoing opinion of BOUR, C., is adopted as the opinion of the court. The appeal is dismissed.
All concur.