258 Mo. 208 | Mo. | 1914
Suit for personal injuries resulting from assault and battery.
This action was transferred to this court by the Kansas City Court of Appeals because the amount in issue exceeds $7,500.
The appeal is somewhat unusual. In his printed abstract of the record appellant describes it as follows:
‘ ‘ This is an appeal from the ruling from the circuit court overruling a motion for a new trial. In the court below the defendant obtained a verdict.”
A careful inspection of the abstract of the record shows that the cause was tried by a jury in the circuit court of Atchison county, which jury, on May 29, 1909, returned into court the following verdict: “We the jury find for defendant. W. H. Wright, Foreman.”
On said May 29, 1909', the plaintiff filed a motion for new trial, which motion for new trial was continued to the next regular term of the circuit court.
On the 2nd day of October, 1909', said court, having again convened in regular session, the following orders were entered of record:
“Now comes both parties herein, and by their respective attorneys, and by agreement of parties, plaintiff’s-motion for a new trial coming on to be heard, and the court being now fully advised in the premises, overrules said motion. To the action of the court in overruling plaintiff’s motion for a new trial*210 plaintiff then and there and at the time excepted and still excepts.
“Comes now plaintiff, by his attorneys, and files his affidavit in appeal, and prays an appeal hereof from the ruling of the court on said motion for a neio trial to the Kansas City Conrt of Appeals, at Kansas City, Missouri, which appeal is allowed by the court. ’ ’ (The italics are ours.)
Our Code, section 2038, Revised Statutes 1909, does authorize an appeal from an order of a circuit court granting- a new trial, or an order arresting a judgment, but there seems to be no warrant in law for granting an appeal from an order overruling a motion for new trial. The law certainly contemplates that the party against whom a verdict is returned shall wait until a final judgment is entered on such verdict before taking his appeal. In the absence of an express statute no appeal lies from the ruling of courts on motions. [State ex rel. Shackleford v. McElhinney, 241 Mo. 592, l. c. 608.] There is 'on file what purports to be a complete transcript of the record proper and bill of exceptions in this case, but it would be useless for us to examine that document to ascertain if a judgment was in fact entered from which an appeal would lie.
Without reciting that a final judgment was entered, and without abstracting a judgment of any kind, appellant has assured us that his appeal is from the order of the court overruling his motion for new trial. This fact is also recited in the order of the court granting the appeal, as copied into appellant’s printed abstract ^and hereinbefore set out), the accuracy of which
We are not cited to, nor bave we been able to find, any law authorizing the granting of such an appeal. [Dale v. Copple, 53 Mo. 321; State ex rel. v. Turner, 113 Mo. App. 53; Herrmann v. Daily, 74 Mo. App. 505; Freeman v. McCrite, 165 Mo. App. 1; Voorhis v. Western Union Building & Loan Assn., 59 Mo. App. 55; Rock Island Implement Co. v. Marr, 168 Mo. 252.]
Being fully convinced that this appeal was improvidently granted the same will be dismissed. It is so ordered.