Emerson Sutton v. Jerome Goldenberg

The issue before us, may an appeal be taken from the filing of a stipulation for dismissal with prejudice of the last two counts of an eight count petition without an order of the court? For the reasons hereinafter asserted we determine that the cause has no final judgment and we, therefore, have no jurisdiction to entertain an appeal. We divine from the pro se appellant's brief that after Mercantile Bank foreclosed on appellant's property and sold it to respondent, appellant continued to assert that he was the rightful owner and continued collecting rents and evicting tenants. In an effort to curb appellant's actions, respondent contacted the circuit attorney's office and the police department which subsequently resulted in appellant's arrest. When appellant's then attorney advised the authorities that he and respondent were contesting the ownership of the building in bankruptcy court, all charges against appellant were dismissed and he was released from custody. Appellant then sued respondent for slander, malicious prosecution and false arrest arising from these incidents. Respondent counterclaimed for rents appellant collected after respondent purchased the building from the bank. Six counts of appellant's tort claims, as well as respondent's counterclaim for rent money, were resolved by verdict in a jury trial in December 1989. The jury was unable to dispose of the other two tort claims (Count VII and VIII). The court declared a mistrial on these two counts and ordered them for retrial. Appellant deposited funds into the court registry to cover the jury award on respondent's counterclaim for rent money appellant collected after respondent purchased the property. Prior to a second trial, the parties for consideration entered into a stipulation for voluntary dismissal with prejudice on these counts. A docket sheet revealed that the stipulation was filed on August 26, 1992. There is no evidence other than the clerk's recognition of the filing, that the court approved the stipulation and ordered a dismissal.