
    Nat Koplar and Marmaduke Apartments, Inc., Appellants, v. Barnet L. Rosset, Individually, Boyle G. Clark, Individually, Barnet L. Rosset, Boyle G. Clark and Lawrence E. Mahan, Voting Trustees Under a Trust Agreement Dated July 1, 1936, of Marmaduke Apartments, Inc.; Metropolitan Trust Company, Individually, Metropolitan Trust Company, Corporate Trustee Under Deed of Trust and Chattel Mortgage Dated July 1, 1936, Between Marmaduke Apartments, Inc., and Certain Bondholders and Stockholders, Respondents.
    No. 40929.
    214 S. W. (2d) 417.
    Division Two,
    November 8, 1948.
    
      J. L. London for appellants.
    
      J. Coy Bour, Paul M. Peterson and William H. Becker for respondents.
   [418]

BARRETT, C.

This appeal arises out of Koplar v. Rosset, 355 Mo. 496, 196 S. W. (2) 800. The immediate question, which the parties have attempted to present, is the appellants’ right to file a supplemental petition. Mo. R. S. A., Sec. 847.83; Federal Rule 15 (d); Drake v. Kansas City Pub. Serv. Co., 333 Mo. 520, 63 S. W. (2) 75; Ward v. Davidson, 89 Mo. 445, 1 S. W. 846. After the mandate in the principal case the plaintiffs asked leave to file a supplemental petition (Southern Pac. Co. v. Conway, 115 F. (2) 746, 750) in which they seek to recover for alleged acts of continuing misconduct, acts occurring after the rendition of the decree in the principal case. The trial court was of the opinion that it did not have jurisdiction to try the issues presented by the supplemental petition and leave to file the petition was denied. Tbe appeal is from tbe order denying leave to file tbe supplemental petition.

But, upon tbe record tendered, tbe obvions challenge of tbe appeal is tbe court’s jurisdiction, that is whether there was such a final judgment and disposition of tbe cause (Mo. R. S. A., Secs. 847.126, 1236; Sup. Ct. Rule 3.24; Bruun v. Katz Drug Co., (Mo.) 211 S. W. (2) 918) that this court may or should entertain jurisdiction of tbe appeal. More precisely tbe question upon this record is whether tbe appeal is premature in that all tbe issues before tbe court were not disposed of. Hill-Behan Lumber Co. v. Hammer Dry Plate Co., (Mo. App.) 162 S. W. (2) 348. It may be assumed for tbe purposes of this opinion that an order dismissing a supplemental petition is a final, appealable judgment. Goodyear Tire & Rubber Co. v. Overman Cushion Tire Co., 66 F. (2) 81; Johnson v. Horton, 63 F. (2) 950. Certainly so when tbe effect of tbe order is to completely and finally dispose of tbe ease on its merits in some material respect. 4 C. J. S., Sec. 116c(5), pp. 218-220. In this respect an appeal from an order, denying leave to file a supplemental petition is fairly comparable to tbe dismissal of an intervening petition. City of St. Louis v. Silk, (Mo. App.) 199 S. W. (2) 23. In these instances tbe rulings have tbe force of an order sustaining a demurrer to a petition. Sebastian County Coal & Mining Co. v. Fidelity Fuel Co., 317 Mo. 610, 613, 296 S. W. 154.

But we are not confronted with that bind of a record in this case. Here, after tbe judgment of tbe trial court was affirmed and our mandate to tbe trial court was filed, tbe record recites that tbe respondents as trustees, and purportedly in accordance with our opinion, filed their final report and asked to be discharged. Thereafter, on July 24, 1947, tbe plaintiffs (tbe appellants here) were given thirty days in which to file exceptions to tbe report and, within tbe allotted time, did file their exceptions to tbe report. The exceptions are set forth in tbe record. Among other things tbe exceptions charge that tbe parties filed tbe report and attempted to get a discharge from tbe judge temporarily sitting in the division when their opponents were unavailable and knowing that they desired to be beard and present evidence against tbe report. It is charged, in tbe exceptions, that tbe respondents “well knew that they were liable . . . for other substantial sums of money as a result of their conduct and [419] overt acts since tbe rendition of tbe Decree of this Court on July 13, 1945.” It is further alleged in tbe exceptions that tbe report was filed after notice of tbe plaintiffs’ intention to file a supplemental petition. The substance of tbe proposed supplemental-petition is then set forth and, among other things, it alleges that the respondents have become indebted for further expenses and additional items totalling $16,350.00. Finally, it is alleged in tbe exceptions that “this court retained jurisdiction of this cause,, by its Decree of July 13th, 1945, to review and pass upon said acts of the defendants, . . . ”

The proposed supplemental petition, upon which this appeal is based, does not cover, of course, all the objections the appellants might have to the proposed settlement but it does seek recovery for “continuing transactions or occurrences both as Trustees and individually.” The petition realleges by reference the thirty-eight paragraphs and prayer of the.original petition, it alleges that the respondents failed to comply with the demands of the newly appointed trustees, it alleges the fact of the prior proceedings in this court and the conduct' of the respondents in other courts, and it alleges by reason of these actions the incurring of other items of expense for counsel fees and expenses of administration. It alleges the report of the respondents and their deposit into court in discharge of their obligations the sum of $10,168.71 and the fact that “the matter is now pending on exceptions filed by the plaintiff, Nat Koplar and Marmaduke Apartments, Inc.” The supplemental petition then asks for the recovery of the additional specific items, and finally an item of damages, not included in the exceptions, in the sum of $35,000.00.

In these circumstances, despite the recital in the court’s decree that “It is agreed by all parties that the decree entered herein is a final decree,” we are of the view that the appeal is yet premature because all issues before the court concerning the subject were not disposed of. If the recital agreement could be construed as a waiver of the exceptions we would be confronted with a different situation. But here it does not appear that the court has yet fully exhausted its jurisdiction concerning matters contained in both the exceptions and the supplemental petition. The arguments of both parties on the merits of the appeal further indicate the inadvisability or undesirability of attempting to dispose of the merits of this cause on this appeal. For example, the respondents, in contending that the court did not have jurisdiction to permit the filing of the supplemental petition, argue as a matter of law that they are not liable for the additional fees and expenses even though the same question, concerning a part of the items, is involved in the exceptions. On the other hand the appellants argue that the respondents are liable for these same items and yet most of the items are still pending before the court-on the plaintiffs’'exceptions. And, the court’s order either approving or disapproving the exceptions is a final appealable judgment. Bushman v. Barlow, 328 Mo. 90, 40 S. W. (2) 637. In short our adjudication upon this record would result in a piecemeal disposition of the cause. In the circumstances of this record the order refusing permission to file the supplemental petition is not a final appealable order because all the essential, material issues before the court were not disposed of and the appeal is premature. 4 C. J. S., Secs, 94, 95a, 101, pp. 185, 190, 197; Hill-Behan Lumber Co. v. Hammer Dry Plate Co., supra; Bruun v. Katz Drug Co., supra; Continental Oil Co. v. Osage Oil & Refining Co., 57 F. (2) 527, 529.

Accordingly tbe appeal is dismissed and tbe cause remanded.

Westhues and Bohling, CC., concur.

PER CURIAM:

Tbe foregoing opinion by Barrett, C., is adopted as tbe opinion of tbe court.

All tbe judges concur.  