577 S.W.2d 143 | Mo. Ct. App. | 1979
The appeal of Nabeha Mossie arises from a judgment upon the verdict of a jury for $49,863.00 on Count I granted to her brother, Moneer M. Rahhal, upon his claim for a share in the proceeds of a promissory note, payable to both, given by Mr. and Mrs. Roberts in partial payment of the purchase price of an apartment building at 3431-3433 Holmes, Kansas City, Missouri. Count II prayed for punitive damages, but that issue was not submitted to the jury. The court also entered judgment for Moneer upon his Count III for partition of the remainder of the Roberts’ note, and ordered distribution of the balance of the note and of an account containing payments received from the Roberts after Moneer filed his action. Upon the facts, and for the reasons following, Nabeha’s appeal must be dismissed because not timely filed.
Judgment upon the verdict of Count I was entered January 6, 1977, and upon Count III for partition January 10, 1977. Nabeha filed her motion for judgment notwithstanding the verdict or for a new trial on January 21, 1977, and the motions were overruled on April 22, 1977. Thus, under Rule 81.04, the time for filing the notice of
Nabeha suggests also that a trial court entry of May 4, 1977, “Order for Specific Performance of Judgment Under Rule 74.20” set the date for finality. That order is not a part of the transcript of the record filed herein, and may not be noticed. Holt v. Rabun, 519 S.W.2d 561 (Mo.App.1975). But regardless of that, the judgment entries of January 6 and 10, 1977, disposed of the issues and rights of the parties, and the May 4, 1977, order added nothing more. Rule 74.20 is inapplicable.
The filing of a timely notice of appeal is mandatory and is jurisdictional. Holmes v. Navajo Freight Lines, Inc., 488 S.W.2d 311 (Mo.App.1972). This court is therefore prevented from considering Nab-eha’s contentions of error because her notice of appeal was not filed within ten days of the date the judgment against her became final.
Moneer appeals from a judgment against him in favor of Nabeha upon her counterclaim. That counterclaim (Count I) was founded upon a written instrument between the parties evidencing a debt due
Nabeha’s appeal is dismissed because the notice thereof was not timely filed. Her judgment on her counterclaim against Mo-neer is reversed and the case is reversed with directions to enter judgment against Nabeha and in favor of Moneer thereon.
All concur.