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INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY v. CURTIS MATHES MANUFACTURING CO. & BILL HUFF d/b/a WINK RADIO & T.V. SERVICE

SEPTEMBER 12, 1984

INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY
v.
CURTIS MATHES MANUFACTURING CO. & BILL HUFF d/b/a WINK RADIO & T.V. SERVICE



BEFORE BOWLING, DAN LEE AND PRATHER, JJ. AND SUGG, RETIRED SUPREME COURT JUSTICE

SUGG, RETIRED SUPREME COURT JUSTICE, FOR THE COURT: *fn1

Three questions are presented by this appeal.

I. Did the trial judge abuse his discretion when he entered a final judgment and certified it under Rule 54 (b) for one defendant in an action against multiple defendants?

 II. Did the trial judge err when he held that the suit against Huff was barred by the six year statute of limitations, Section 15-1-49, Mississippi Code Annotated (1972)?

 III. When final judgment was not entered as to one defendant in a multiple party action, should the appeal be dismissed as to such defendant?

 I.

 On May 4, 1983, Indiana Lumbermens Mutual Insurance Company (hereafter ILM) filed suit in the Circuit Court of the First Judicial District of Hinds County against Curtis Mathes and Bill Huff. On May 9, Huff filed his answer and asserted as his first defense that plaintiff's cause of action was barred by the six year statute of limitations. On the day Huff filed a motion for judgment on the pleadings dismissal of the defendant. After due notice Circuit Judge Reuben Anderson rendered judgment as follows:

 This cause this day came on for hearing on the motion of the Defendant Bill Huff seeking judgment on the pleadings and dismissal of said Defendant; and the Court, having heard and considered said motion and argument of counsel, is of the opinion that this action is barred by the applicable Statute of Limitations and that the Defendant Bill Huff is entitled to be finally dismissed, and the Court determining that there is no just reason for delay

 and being of the opinion that said Defendant is entitled to final judgment at this time;

 IT IS THEREFORE ORDERED AND ADJUDGED that the Defendant Bill Huff be, and he is hereby, finally dismissed with his costs, that final judgment is hereby rendered in favor of the Defendant Bill Huff as provided by Rule 54 (b), Mississippi Rules of Civil Procedure, and that the Plaintiff do have and recover nothing of or from the Defendant Bill Huff by this suit.

 The final judgment was rendered under the provisions of Rule 54 (b), Mississippi Rules of Civil Procedure, which is the same as Federal Rule 54 (b). The Rule provides:

 (b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

 In cases involving multiple parties, a trial judge is authorized to enter a final judgment when it terminates the case as to one or more of the parties. When a trial judge makes an expressed determination that there is no just reason for delay and enters a final judgment, that judgment is released for appellate consideration. 10 Wright & Miller, 2659, p. 97. This authority should be exercised cautiously in the interest of sound judicial administration in order to preserve the established judicial policy against piecemeal appeals. Curtiss-Wright Corporation v. General Electric Company, 446 U.S. 1, 8, 100 S. Ct. 1460, 64 L.Ed.2d 1, 11 (1980); Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 438, 76 S. Ct. 895, 100 L.Ed. 1297 (1956); Cold Metal Process

 Co. v. United Engineering & Foundry Co., 351 U.S. 445, 450, n.5, 76 S. Ct. 904, ...


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