*1 Dry Lоgan Boyd, Appellant, v. a Cor Company, Goods Jones Ida (2d) 598. W. poration. S.—74 One, September 18, 1934.* Division & GooUdge Barnett appellant. Thomas Flora for Harris for respondent. Koontz
HYDE, case, coming recently C.—This writer, is an action $10,000 damages death husband, alleged have been negligence caused of defendant the construction stairway. of a maintenance court sustained a de- Opinion 12, .1934; *NOTE: filed at June motion fоr filed; rehearing July 17, 1934; overruled motion to transfer September Term, September 18, Court en Banc motion overruled at (cid:127) 1934. n
murrer evidence. Plaintiff took non- suit, thereafter filed motion to set it which was *2 appealed, and then following: all of as to which the record shows the “May (being regular 1931)— 19th day May a Term, term of the 'Now, day on this 9th May, being regular day of the same a term May of court, again the of this for trial the comes on сause, above-entitled pursuant adjournment thereof, 18th, May to on jury impaneled and comes May 18th, the herein on said parties by attornеys, and come the parties open- their and the submit jury, statements plaintiff to the the to and submits evidence herein, petition sustain the issues her аnd plain- of at the close of the evidence, requests give tiff’s a the court to peremptory defendant, in instruction favor of the in the nature of a demurrer objection evidence, instruction, the over the of plaintiff, gives. the court “ ‘Thereupon, plaintiff excepts giving of instruc- the to the said and, is court, thereafter, tion of and before said the instruction involuntary jury, plaintiff prays read to the the the court to entеr herein, same, which to move to aside the nonsuit with leave set involuntary nonsuit, with move the to set same jury And, the dis- by thereafter, the court. orderеd consideration of said charged the court from further cause.’ —1931) day Term, regular of “May (being 21st term involuntary set nonsuit. Plaintiff files motion to aside —1931) dаy regular May Term, of (being, 20th “June term involuntary court Plaintiff’s motion to aside Forthwith, plaintiff excepts. to which heard and affidavit for an plaintiff files hеr and from motion to set aside the court her order of ap- said and allows cause, in and court said Missouri, prayed. And it is further of as Supremе Court to the given time re- that the the court ordered herein.” exceptions bill quired by law file her of as follows: affidavit for application and cause and shows above-entitled plaintiff in the now “Comes prays and affidavit for has filed herein court that she to the this over- court grant her an the court of from taken to set her aside ruling plaintiff’s Missouri. Court of herein, Supreme attorneys plaintiff.)” “(Signatures of Jackson, County ss. Missouri, of of “State duly sworn, and being makes oath herein, Boyd, plaintiff “Ida and that the herein appellant and that she is states delay vexation made for cause is in above .or prayed aggrieved by that she affiant believes appellant her motion to set of nonsuit. “ ” (Signature jurat notary.) of affiant and of duty first any case, ques of this in whether the Tbe tion not, jurisdiction. is raised or right to see it has Since the appeal, law, an actions at did not exist common law but .solely by statute, authority conferred this court has no to act on beyond appeals provisions Legislature. [Stephens made Manufacturing v. Oberman right except cases Since exists as cited.]
by statute, compliance mandatory statutory рrocedure is es sential. right Section 1018, Revised Statutes establishes the judgments of appeal to this court and and orders which states appealable. sustaining An appeal lies from an order set aside an because it effect an order *3 granting statute, new trial which no is covered overruling an set aside therein from order motion to Purcell, involuntary nonsuit, v. 287 an and none lies. [Bonanomi 436, 120; City Mo. 230 S. W. rel. Stock Yards Co. State ex Kansas Trimble, (2d) 51, v. 333 62 here shows Mo. S. W. The record 473.] only, overruling set aside that it was from the order her motion to sought ap involuntary nonsuit, appeаl. an Her that is that her states, but what makes the matter conclusive plication so aggrieved the order for states that affidavit “she involuntary nonsuit.” overruling her motion to set aside may required and is not written an A jurisdic required by the statute is disregarded affidavit but the sought ap order, Therefore, thе identification of tional. affidavit. from, statements of the pealed must be determined 59 W. Co., 930, 332 S. Laundry Mo. City Service v. Kansas Trimble, v. City Yards Co. (2d) 633; Stock Statе ex rel. Kansas W, allow (2d) appears that order 51, 333 62 It also Mo. S. 473.] appeal from the order appeal herein that, upon so to set aside the plaintiff’s motion In nothing court. before this here, there presented the record pur course, if itself “Of the order said: case this court the Pence matter, invalidity its nonappealable in an ports allow an be void on its face would be . . an order . Such apparent. grant an attempt very an would disclose cause its terms therefore, must, dismiss nonappealable matter.” We in a appeal. granted been why appeal could have may be a reason There made, since the record was the time the casé, all in this at of nonsuit. judgment' an actual final contain here does not furnished “involuntary an
It that at the shown 950
move to set court;” the same aside is ordered entered that mоtion to set aside was this motion that was over ruled; and that forthwith plaintiff applied granted an appeal from plaintiff may ap A motion. that from a rendered finally discharges dismisses his case and it is 2 Rowse, 191, 209; a final v. 90 Mo. S. W. [Chouteau 33; Co., 626, Lyons Nivert v. Wabash Railroad 232 Mo. 135 S. W. v. Rollinson, 68, 646; Leesley 109 82 W. v. App. Mo. S. Bros. 138; Rebori 162 144 Co., App. 195, Fruit S. W. Mo. American Car Foundry Kettelhake, Sup. Co. v. 236 U. 35 59 S. Ct. judgment, L. Ed. is no final from which an There 594.] lie, only where the record shows that the court sustained demurrer and that a took an nonsuit with leave to move entry dismissing ease set the same without a further discharging [Lyons Rollinson, v. or dеfendant. & Reesman App. practice, timely 82 W. Under our motion S. entry judg (one days) prevents of a final filed within four judgment, form, may A of it. disposes ment immediately (which is after be entered either the verdict received Regardless practice) or is overruled. a common after motion it is until the which time it arrest, veredicto, or trial, for new motion in motion non obstante (as be) the case Manufacturing Co., 334 Mo. [Stephens v. Oberman is оverruled. 899; (2d) v. Schaab Stove Furniture 70 S. W. Cox (Mo. (2d) 790; 67 W. App.), 332 Mo. 58 W. S. S. Downey, Haag (2d) 147; Young Romine v. (Mo.), *4 317, All motions and orders of these ‘‘ disposing steps leading judgment of thеm final are but given.” follows expressly and from which an Laudry supra.] Necessarily, cannot be en any ruled, tered before such if of these motiоns motions are taken, sustained the statute allows an to test ruling, If correctness of such before a final is entered. usually appellatе court finds the correct the result trial; ruling wrong usually new it finds the will reverse it and it something judgment entered; re final either case actually What mains to be done before there is a rights depends further have the actual state court’s record. GC., Ferguson Hyde, concur. herein is dismissed. foregoing by Hyde, C., adopted PER opinion CURIAM:—The opinion judges as the All concur. of-the court.