Citizens Bank of Dexter v. Hall Trailer Sales, Inc.

550 S.W.2d 233 | Mo. Ct. App. | 1977

BILLINGS, Chief Judge.

A Stoddard County jury returned a verdict in favor of plaintiff Citizens Bank of Dexter in its suit on a promissory note. Judgment was entered and defendant Hall Trailer Sales, Inc., appealed. We affirm.

The verdict was received and judgment entered on January 30, 1976. The special judge hearing the case then granted defendant “thirty days within which to file motion for new trial.” Defendant’s motion for new trial was filed March 1, 1976.

Supreme Court Rule 78.04 provides that a motion for new trial “shall be filed not later than 15 days after the entry of the judgment on a jury verdict, which judgment shall be entered as of the date of the verdict.” And under Rule 44.01(b) this time period cannot be extended by the trial court.

By reason of the provisions of Rules 78.04 and 44.01(b) the lower court was without jurisdiction to enlarge the time within which defendant could file its motion for a new trial. The order purporting to grant the defendant additional time was void and a nullity. Defendant’s motion for new trial, filed more than 15 days after the judgment was entered, is also a nullity and preserves nothing for appellate review. Rule 78.07 requires that in jury tried cases allegations of error sought to be preserved for review must be included in a motion for new trial and this contemplates a timely motion for new trial under Rule 78.04.

Defendant acknowledges the trial court erred in granting 30 days in which to file its motion for new trial and concedes an untimely motion for new trial fails to preserve trial error for review. However, defendant seeks to invoke the plain error principle set forth in Rule 84.13(c). This rule provides we may consider, in our discretion, plain errors “affecting substantial rights” even though not properly preserved, when we find “manifest injustice or miscarriage of justice has resulted.”

We have carefully reviewed the trial transcript and the briefs filed herein and conclude plain error amounting to manifest injustice or miscarriage of justice is not present. Defendant’s principal point urging plain error is an attack on the verdict directing instruction. Considering the evidence and inferences favorable to the party offering the instruction [Commerford v. Kreitler, 462 S.W.2d 726, 728 (Mo.1971)], each of the disjunctive submissions of theories of recovery was supported by substantial evidence. Saupe v. Kertz, 523 S.W.2d 826 (Mo. banc 1975); Johnson v. Bush, 418 S.W.2d 601 (Mo.App.1967).

Plaintiff’s motion to dismiss this appeal for defendant’s alleged failure to comply with Rule 84.04(c) is denied. The judgment is affirmed.

All concur.