(dissenting in part) — I respectfully dissent from Division I.
I. Division I of the majority opinion extends rule 331(b) too far. The chronology and nature of the rulings should be noted.
On July 8,1959, plaintiff filed this action against defendant city and against defendant Bernstein.
*775On August 25, 1959, defendant Bernstein moved to require plaintiff to divide his petition into a separate division for each cause of action. The motion was sustained.
On September 10, 1959, plaintiff filed amendment to petition. Division I alleges negligence incident to a slippery sidewalk. This claim was not pursued. Division II alleges negligence in permitting a ramp to extend onto the sidewalk.
On September 16, 1959, defendant Bernstein filed motion to dismiss as to him. On October 17, 1959, the motion to dismiss was sustained.
As between plaintiff and defendant Bernstein, nothing further was done. Bernstein was out of the lawsuit. As to him, the order was final. He had no further obligations nor rights. There was no place for him at the counsel table. There was no opportunity nor need for him to be heard.
On November 21, 1960, over a year later, the case came on for trial, not against Bernstein but against the city. Bernstein had nothing to do with the trial. He was not a party thereto. Had plaintiff prevailed at the trial, he would have had no judgment against Bernstein.
Rule 86, Rules of Civil Procedure, relates to pleading over after an adverse ruling. It provides: “* * * Unless otherwise provided by order or ruling, such party shall file such further pleading within seven days after such mailing or delivery; and if such party fails to do. so within such time, he thereby elects to stand on the record theretofore made. On such election, the ruling shall be deemed a final adjudication in the trial court without further judgment or order; reserving only such issues, if any, which remain undisposed of by such ruling and election.”
Plaintiff did not plead over after Bernstein was dismissed. Under rule 86 the ruling was a final adjudication.
Rule 331(a) provides for appeals from final judgments including final adjudication in the trial court under rule 86 materially affecting the final decision. Rule 331(b) preserves the right of final appeal after interlocutory error or “any final adjudication in the trial court under rule 86 from which no appeal has been taken, where such ruling, decision, or final adjudication is shown to have substantially affected the rights of the complaining party.”
*776I would construe this rule as applying to parties still in the lawsuit and to issues between them. I would not construe the rule as applying to parties no longer in the case.
Under rule 335 time for appeal is limited to 30 days.
As to defendant Bernstein, plaintiff’s time for appeal should run from October 17, 1959, and not from the time of trial between plaintiff and defendant city.
As to defendant Bernstein, the appeal was not timely. I would sustain his motion to dismiss.
Hays and Thornton, JJ., join in this dissent.