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BERTHA ELOISE STANLEY v. ALLSTATE INSURANCE CO. AND DENNIS A. WINNETT

FEBRUARY 27, 1985

BERTHA ELOISE STANLEY
v.
ALLSTATE INSURANCE CO. AND DENNIS A. WINNETT



ON MOTION TO STRIKE AND DISMISS

BEFORE ROY NOBLE LEE, HAWKINS AND SULLIVAN:

HAWKINS, JUSTICE, FOR THE COURT:

Bertha Eloise Stanley appeals from a judgment of the Circuit Court of Jackson County dismissing her claim against Allstate Insurance Company in a suit filed by her against Allstate and its insured, Dennis A. Winnett.

 Allstate has filed in this Court a motion to dismiss the appeal because of Stanley's failure to timely perfect her appeal. The issue we address on this motion is the time within which to perfect an appeal from an order dismissing the cause as to one of two co-defendants when the other co-defendant has not been served with process.

 Finding that such an order of dismissal as to the only party under any process is a final order, and the appeal in this case is controlled by Miss. Code Ann. 11-51-5 requiring perfection within forty-five days, we sustain Allstate's motion and dismiss the case. *fn1

 FACTS

 On June 17, 1982, Stanley filed a suit against Allstate and Winnett in the Circuit Court of Jackson County for personal injuries she alleged were sustained when Winnett "rear ended" her in a motor vehicle accident on Highway 90 in Pascagoula. Allstate was the liability insurance carrier for Winnett.

 On July 20, 1982, Allstate filed two motions to dismiss, one embodied in various defenses in its answer, and the other a separate motion to dismiss. Both these motions to dismiss in the trial court contended the Circuit Court lacked the authority to entertain a direct action against the insurance carrier.

 Stanley, on the other hand, contended Rule 18 of our Mississippi Rules of Civil Procedure authorized this direct proceeding.

 On August 12, 1982, the circuit judge conducted a hearing, heard argument and ruled the cause should be dismissed as to Allstate.

 On August 16, 1982, the circuit judge entered an order

 sustaining the motion and dismissing Allstate from the cause of action. This order of dismissal was filed on August 16, also.

 On November 8, 1982, Stanley filed a motion in the circuit court for certification to appeal under Rule 54(b) of the Mississippi Rules of Civil Procedure. The motion contended that the order of August 16, 1982, was not a final judgment for purposes of appeal, and that she should be permitted an appeal under Rule 54(b).

 On November 12, 1982, the circuit judge entered a judgment pursuant to Rule 54(b), containing the language required in this rule in order to permit an appeal in a multiple party action. That is, ...


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