Cowhick v. Jackson

157 Mo. App. 514 | Mo. Ct. App. | 1911

BROADDUS, P. J.

— This is an action on a promissory note for the sum of fifty dollars, executed by Nellie Gr. Shreves and W. S. Shreves, and made payable to the order of Fidelity Trust Company or John T. Jackson. The note was assigned and delivered by Jackson to Gr. Gr. Cowhick, and by him assigned to the plaintiff. Jackson endorsed the same in blank, but over his signature was the following writing: “For value received, I promise to pay the amount to Rebecca A. Cowhick.”

The suit was begun in a justice’s court where it was transferred on change of venue to another justice’s court, where trial was had and judgment was rendered against all the parties to the note, including Jackson. Jackson alone appealed to the circuit court. Plaintiff moved to dismiss the appeal on the ground that Jackson had not given plaintiff notice of his appeal as required by section 4074, R. S. 1899.

On the 29th day of June, 1910, and during the' April term of the court, the court overruled plaintiff’s said motion to dismiss the appeal. To the action of the court in overruling said motion plaintiff excepted. Afterwards in vacation on the 21st day of July, 1910, ,and before the expiration of said April term, plaintiff presented “her term bill of exceptions in the above entitled cause, and the bill of exceptions having been seen and examined and found to be true and correct, the same is by the Honorable Thomas J. Seehorn, judge of Division No. 3, and assignment division of this court, signed, sealed, and allowed and it is ordered that said term bill of exceptions be, and the same is hereby filed and made a part of the record in this cause.”

At the subsequent October term of the court, plaintiff failed to appear- when the cause was called for trial, whereupon it was dismissed for want of prosecution.

On the 17th day of November, 1910, plaintiff sued out a writ of error and the cause is before us on the record as made. The error complained of is the action of tlie court in overruling plaintiff’s motion to dismiss tlie defendant’s appeal from tlie justice’s court to tlie circuit court.

The defendant in error has filed a motion to dismiss the writ on the ground that the action of the court in overruling plaintiff’s motion to dismiss defendant’s appeal from the justice’s court is not a final judgment. The motion must be sustained. Writs of error issue only upon a final judgment or decision of a circuit court, or other court having concurrent jurisdiction with the circuit court. [Section 2054, Revised Statutes 1909.] “Writs of error will not lie in the absence of a final judgment.” [Hodkins v. Taylor, 59 Mo. 106; Padgett v. Smith, 205 Mo. 122.]

Motion to dismiss writ sustained.

All concur.