Failure to Obtain Ruling on all Claims (and Verdict on All Defendants) Precludes Appellate Review
Misenheimer v. Pitts, No. CA06-76, returned to the Court of Appeals for a second time this week and the Court of Appeals dismissed again, for the same reason as the first appeal: lack of a final order.
The underlying case involves "various torts in connection with the shooting of [plaintiff's] hogs and cattle." The plaintiffs earlier appealed the Stone County Circuit Court's grant of summary judgment to some, but not all, of the defendants; that appeal was dismissed for lack of a final order.
At that point:
Appellant returned to circuit court and non-suited his case against one alleged tortfeasor, leaving appellees and possibly one other person as the remaining defendants, with trespass, conversion, and assault as the remaining claims.
On November 14, 2005, appellant tried his conversion and assault claims against appellees. Appellees obtained a directed verdict, and judgment was entered accordingly. That is the order from which this appeal is brought. . . . Appellant’s claims for conversion and assault were concluded by a directed verdict, but the record does not indicate that appellant’s trespass count has been dismissed or otherwise resolved. That count therefore remains pending.
(emphasis supplied). This defect would be enough to dismiss the appeal, but there was also another, mysterious, defendant whose inclusion created problems for the appeal:
[A]ppellant, in an amended complaint, added allegations against Sybil McIntire, although he did not list her in the complaint’s caption. It is not clear whether Ms. McIntire was served with a summons—she never appeared in the action, and appellant does not mention her in this appeal. Nevertheless, her being named as a defendant requires that she be dismissed to achieve finality.
