8 Mo. App. 544 | Mo. Ct. App. | 1880
delivered the opinion of the court.
This question arises on a motion to dismiss the writ of error on the ground that it was not sued out within three years after the rendering of the judgment or decision of the court below. Rev. Stats., sect. 3745. A motion for a new trial cuts no figure in this respect, since the writ must be brought within thrée years after the time when the final judgment itself was rendered. Ham v. Public Schools, 34 Mo. 182. In the case at bar there was a decree of date March 31, 1876, and the writ of error was sued out on April 2, 1879 ; but the plaintiffs in error contend that that decree was not the final decree in the case : that the final decree was rendered on October 10, 1876. Thus the question is presented whether the decree of March 31, 1876, was the final decree. The parts of the bill here material
A receiver was appointed, the bill was taken as confessed against Reilly, the Guardian Building Company, and others, and the decree of March 31, 1876, was entered. This shows a submission to the court on the pleadings and proofs, a finding of the facts stated in the petition as true, and further, that the liens of the two deeds of trust were valid. The court accordingly “ ordered, adjudged, and decreed the said deeds of trust held by the plaintiff and defendant the Boatmen’s Savings Bank to be valid and subsisting encum
On August 18th, the receiver’s report was filed, and on October 10th, on motion of the plaintiff, it was ordered that this report be confirmed and the receiver be discharged ; that the decree theretofore made be in all things confirmed, and that the plaintiff pay the costs.
It is apparent from these facts that the final decree, in the sense here in question, was that of March 31st. Indeed, the subsequent order does nothing in the way of accomplishmelit but confirm the report, discharge the receiver, and award the costs. The esseutial action from the effects of which the plaintiffs in error seek relief was accomplished by the decree, not by the mere order necessary to adjust the incidents. The decree of March 31st was “ the final determination of the rights of the parties in the action.” Rev. Stats., sect. 3672. It is immaterial that the decree did not give all the relief which the plaintiff asked. The answer to that position, as also to the argument that the decree did not award the costs, is that there was no suspension of any matter, when the decree of March 31st was made, with a view to ultimate action. The whole merits were disposed of, and all that remained to be done was to carry into effect the previous action of the court.
It is said that a decree which does not dispose of the question of costs is interlocutory, though it disposes of every other matter. But this implies, as just stated, a reservation or suspension requiring the matter to be brought before the court again, even under the statutes upon which such a ruling has been made. Decisions upon peculiar statutes relating to chancery appeals have little bearing
The writ of error is dismissed.