659 S.W.2d 578 | Mo. Ct. App. | 1983
This is an original proceeding in prohibition. The sole issue applicable to making this court’s preliminary order absolute is whether Rule 81.07(a)
The relators here obtained, as plaintiffs, judgment in an associate division of the Circuit Court of Jackson County for a total of $4,250 in damages arising out of an automobile accident. The date of the judgment in this court tried case was April 11, 1983. Eleven days later, on April 22, 1983 the defendant filed an application before the associate for a trial de novo in Circuit Court. The defendant on May 2 also filed, pursuant to Rule 81.07, a motion in Circuit Court to allow permission for a late filing of her application. The respondent Judge, granted the late de novo application relying upon State ex rel. Weisman v. Edwards, 645 S.W.2d 732 (Mo.App.1983), under Rule 81.-07.
The right of appeal is purely statutory. Plaza Point Investments, Inc. v. Dunnaway, 637 S.W.2d 303, 305 (Mo.App. 1982). The relator’s argument in essence is that nothing statutory i.e. Section 512.180 et seq. governing “appeals”
Weisman, supra, involved an application for trial de novo after the ten day limit.
Also contradicting Weisman is the case of Essner v. Reynolds, 621 S.W.2d 551 (Mo. App.1981) where the ten day requirement was not met. The court held, “[A] timely application for a trial de novo is the vital step in perfecting ‘the appeal’ in this type of case.” (Citation omitted.) At page 553 the court went on to say Section 512.190 requires application within ten days — this language is, “explicit and free from ambiguity or doubt.” * * * “Because here application was not timely filed, the circuit court did not have jurisdiction to proceed, and properly dismissed the case.”
The message of Blackwell and Essner that the ten day requirement cannot be extended, controls over the implication of Weisman that a circuit judge can utilize 81.07 to allow a late filing from an associate’s division.
Rule 41.01(f) lists the rules that apply to actions pending before or heard by an associate. Absent from this list is Rule 81.07.
Although a proceeding under the statutes dealing with workman’s compensation claims, Holmes v. Navajo Freight Lines, Inc., 488 S.W.2d 311, 314-15 (Mo.App.1972), lends further support for the proposition that without statutory provisions or supreme court rules, time limitations for notice of appeal cannot be extended. Under Holmes the compensation laws give a specific time to appeal, and Rule 81 can not in the face of “specific legislative authority” be made to apply.
The respondent’s other point that the time should not start running until after receipt of notice of the judgment, is not well taken. The statute here is clear, the ten days begin to run when the judgment in the associate division is rendered. Essner, supra, at 553; Weisman, supra, at 733.
The other point raised in the answer to the petition for prohibition and in the respondent’s motion to dismiss relator’s petition, namely whether the associate lost jurisdiction by having the matter under submission too long and making void his judgment, is not appropriate to the reaching of a decision on the writ. The motion is overruled, but without prejudice, should the issue come up in future proceedings to collect on the judgment.
Rule 81.07 cannot change the statutory time of ten days under Section 512.190. This court cannot change the law as clearly stated by the general assembly. Therefore the preliminary order is made absolute.
All concur.
. Rule 81.07 appears under the general heading “Rules Governing Civil Procedure in the Circuit Courts,” allows a special order to be sought from the appropriate “appellate” court permitting the late filing of a notice of appeal — this must be done within six months and upon a showing of merit in the claim and that the delay was not due to culpable negligence.
. This statute in pertinent part gives the right of new trial from a non-jury case tried before an associate to be perfected by filing with the associate’s clerk an application for a trial de novo “within ten days after the judgment is rendered.” All sectional references are to the revised statutes of Missouri 1978.
.“Although Section 512.180 is captioned ‘Appeals from cases tried before associate circuit judge,’ it is important conceptionally to understand that it is trial de novo, and, not an ‘appeal’ in the traditional sense that lies from a judgment of an associate circuit judge in cases not heard on the record. This is true because the old magistrate courts have been abolished with the new judicial article, and the consolidation into one circuit court eliminates the ‘appeal’ from one court to another.” Cohen, Civil Practice Before Associate Circuit Judges Since the Court Reform, 37 Mo.Bar J. 217, 221 (1981).