Staab v. Thoreson, No. 10260

No. 10260 | Mo. Ct. App. | Apr 28, 1976

PER CURIAM.

Appellant, Merlin A. Staab, has appealed from an adverse judgment upon respondents’ counterclaim in an action upon a contract for farm land clearing.

Judgment was entered December 19, 1975. Thereafter, on January 15, 1976, appellant filed a motion to set- aside judgment. Said motion alleged that the judgment was procured through extrinsic fraud. We find it unnecessary to recite the events leading to the motion to set aside judgment as the present record affords no basis for appellate review.

A motion to set aside judgment for extrinsic fraud differs from the ordinary after-trial motion in that the former contemplates consideration and ruling by the trial court while the latter is automatically overruled at the expiration of 90 days. The transcript in the present case reveals no action on the motion by either counsel or court. In the absence of a ruling the appeal is premature and must be dismissed.

All concur.