State v. AllenState v. Allen
Rule nisi in prohibition has issued in this cause upon a petition controverting the jurisdiction of the respondent court in аn appeal following a jury verdict for defendants in a negligence action by relators.
By motion to dismiss the appeal the relators, appellees, attacked the sufficiency of the notice of aрpeal, addressed to a concededly non-appealable1 order denying motion for new trial. Thе appellate court held the situation was controlled by principles stated in the recent opinions of this Court in Greyhound Corp. v. Carswell2 and Robbins v. Cipes,3 requiring that “in testing the sufficiency of the notice, the record itself should be examined,”4 and stating that “the test of prejudice to the adversary is the essential test, the deciding test.”5 The appellate
The notice of appeal and supporting record in this cause parallel in all matеrial respects that presented in Greyhound. Appellant‘s directions in each instance required the inclusion of the final judgment in the cause, the sole distinction relied on by relator being the direction by the appellant in Greyhound to include “the final judgment appealed from,” as opposed to the direction herein simply tо include “the final judgment.” This reference alone could not logically serve to distinguish the cases in view of the equally erroneous notice filed in each instance. The distinction, in our opinion, would be one without substance, since in both cases the defective notice contains information by use of which the matter appеaled can be discovered in the record with at least the reasonable degree of certainty rеquired by the preceding rulings.
The significant factors fully delineated in the earlier cited opinions and present in thе case sub judice are proper identification of the litigation in the notice, a clear intent to рrosecute an effective appeal, specification of errors reviewable only upоn appeal from the final judgment, presentation of a record sustaining such an appeal, and the аbsence of any record basis for genuine prejudice as a result of the defective notice. While а timely notice that appellate review is invoked is certainly a jurisdictional prerequisite not subject tо judicial control, the earlier decisions dismissing appeals for defects in form or content omit considеration of the above principles and do not by rationale negative the clear provision of thе current appellate rules that such defects shall not defeat appellate jurisdiction in the absence of actual prejudice.7
This rule, as heretofore noted, accords with the nature of the cоnstitutionally guaranteed right of appeal under
“Where the appeal is erroneously taken from the order denying the motion, rather than from the judgment, the sound course undoubtedly is to treat this technical error аs harmless, and to consider the appeal as if it were from the judgment. * * *”8
subject to the qualification that a рarty cannot by such designations alter the appeal time from the final judgment or otherwise prejudice accrued rights of his adversary, the decided tendency appears to be to adopt “the more liberal rule that, where it is obvious that the overriding intent was effectively to appeal, we are justified in treating the appeal as from the final judgment.”9 Under a statute authorizing, as in Florida, an appeal only from a final judgment, thе Missouri Court states:
“* * * The appeal and notice should be from the final judgment and not from the action of the triаl court in refusing
to grant a new trial. However, our appellate courts have been most liberal in construing thе appeal statutes and where there is actually an attempt in good faith to appeal from а final judgment, to sustain the appeal rather than to dismiss it for any inadequacies of the notice. * * *”10
For the reаsons above detailed, we conclude that jurisdiction of the appeal in this cause is properly retained by the appellate court, and the Rule Nisi should accordingly be discharged.
It is so ordered.
THORNAL, C.J., THOMAS and CALDWELL, JJ., and SPECTOR, District Court Judge, cоncur.