253 S.W.2d 821 | Mo. | 1953
The City of Exeter was incorporated as a city of the fourth class by the County Court of Barry County, Missouri,
Section 1 of Article Y of the Constitution of Missouri for 1945 vests “the judicial power of the state” in certain named courts. County courts are not named. In this respect the section differs from the Constitution of 1875, Article 6, § 1.
It is the position of appellants that § 72.080
Respondents’ position is that in incorporating the City of Exeter upon petition of a majority of the inhabitants under § 72.080 the county court did not exercise judicial power in the sense said terms are used in § 1, Art. Y, Mo. Const., 1945; that such is necessarily the effect of the holding in Re City of Kinloch (September 10, 1951), 362 Mo. 434, 242 S. W. 2d 59, 62[1-16] and the authorities there reviewed, wherein it is ruled that county courts act as a legislative
The review is to this court by reason of the constitutional issue presented in the trial court and kept alive in this court.
Respondents, on September 2, 1952, after due notice to the appellants, filed a motion to dismiss on the ground appellants’ appeal was prematurely taken and did not vest the appellate court with jurisdiction over the appeal. Appellants, although they filed their brief on the merits, have filed no suggestions and make no claim that their appeal is effective.
The judgment in the instant ease was entered on September 17, 1951. The motion for new trial was filed on September 24, 1951, within the ten days allowed therefor by § 510.340. There is no showing of record that the motion for new trial was acted upon by the trial court. It would stand denied by operation of law ninety days after its filing, to wit, on December 23, 1951 (§ 510.360), but six days prior thereto, to wit, on December 17, 1951, appellants filed a notice of appeal to the Supreme Court, and on the same day the clerk mailed copies of said notice to the respondents and to the clerk of this court, together with the docket fee (§ 512.050).
The spirit of the new code (§ 506.010) and our rules (Rules 1.15 and 1.28 — 352 Mo. appendix xiv) is to dispose of cases on their merits, and for an appeal to ride off on a question short of the merits is a matter of solicitude. The right of appeal, in actions at law, did not exist at common law. It has been conferred solely by statute. Appellate courts have no inherent authority over appeals and where the statute does not give the right, it does not exist. 4 C. J. S. 66, §§ 8, 18; 2 Am. Jur. 844, §§ 3, 5, 6; Boyd v. Logan Jones Dry Goods Co., 335 Mo. 947, 74 S. W. 2d 598, 599 [2]; Ferguson v. Board of Equalization of Madison County, 350 Mo. 122, 164 S. W. 2d 925, 927[3]; Johnson v. Johnson, Mo., 16 S. W. 2d 91, 92[2].
So far as material to the instant case, the statute authorizes an appeal “from any final judgment in the case” (§ 512.020); that is, from “the final determination of the right of the parties in the
The entry of the judgment is to be made as of the day of the verdict (§ 510.340) or the day of its rendition by the court in trials without a jury (§ 510.310; Woods v. Cantrell, 356 Mo. 194, 201 S. W. 2d 311, 316 [6]). The judgment is not then a final determination of the rights of. the parties. The statutes permit a motion for new trial to be filed not later than ten days after the entry of the judgment, and if timely filed as in the instant ease, “the judgment is not final until disposition of the motion” (§ 510.340), and if “not passed on within ninety days after the motion is filed, it is deemed denied for all purposes” (§ 510.360). We have said: “So long as the motion for new trial was pending undetermined, the judgment was not final and appealable.” Weller v. Hayes Truck Lines, Inc., 355 Mo. 695, 197 S. W. 2d 657, 660[6], And: “Defendant’s motion for a new trial not having been passed on in 90 days, the judgment became final on December 23rd on the lapse of the 90 days after filing motion for a new trial on September 24th.” Woods v. Cantrell, 356 Mo. 194, 201 S. W. 2d 311, 314[1], Not determinative here is the statutory provision authorizing “the court of its own initiative” to order a new trial not later than thirty days after the entry of judgment. § 510.370.
Section 512.050, relating to notices of appeal, provides: “No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.” However, under § 512.060, if the ordinary notice of appeal from a final judgment is not timely filed with the clerk of the trial court as provided in § 512.050, the party seeking a reversal of such final judgment may secure permission to file a notice of appeal in the trial court “within six months from the date of such final judgment” under a special order of the appropriate appellate court upon proper motion, notice, and showing. This allows six months after a judgment becomes final'and appealable in which to investigate and procure the special order mentioned in § 512.060 if a notice of appeal theretofore filed [824] does not come within the statutes and rules of the court.
The code also expressly provides that courts “may not enlarge the period for filing a motion for or granting a new trial, or for commencing an action or taking an appeal as provided by this code.” § 506.060-2(2).
Our Rule 3.24 clarifies the statutory provisions and provides: “For the purpose of ascertaining the time within which an appeal must be taken, a judgment becomes final at the expiration of thirty days after the entry of such judgment, except when a timely motion for new trial is filed, in which event the judgment becomes final at
The instant issue is not frequently presented. In Christeson v. Christeson, Mo. App., 190 S. W. 2d 568 [1], the appellant filed a motion for new trial and also a notice of appeal on the day the judgment was rendered. The motion for new trial was not disposed of until some time later. The court, raising the issue sua sponte, dismissed the appeal because prematurely taken. For somewhat similar rulings under our former code see Thomas v. Thomas, 64 Mo. 353; Holland v. Marshall, Mo. App., 181 S. W. 124. The filing of a notice of appeal too late is cause for dismissal. Woods v. Cantrell, 356 Mo. 194, 201 S. W. 2d 311, 314[2] (five days); Gockel v. Jenkins, Mo. App., 210 S. W. 2d 691 (two days); Hynes v. Risch, Mo. App., 243 S. W. 2d 116; Krummel v. Hintz, Mo. App., 222 S. W. 2d 574, 579; Bank of Thayer v. Kuebler, 240 Mo. App. 776, 219 S. W. 2d 297, 299.
The legislative intent, gathered from the statutory provisions, was for judgments to remain m fiere for ninety days after the filing of a timely motion for new'trial if the court desires that time to consider the motion, and did not intend to place with counsel the time for filing notices of appeal. Courts should not suspend or modify the statutes, and are expressly prohibited from enlarging the period for “taking an appeal as provided by this code.” § 506.060-2(2); McPike v. St. Louis Union County Bank, Mo. App., 193 S. W. 2d 961; and 193 S. W. 2d 962. This is not a case where the- notice of appeal was refiled within ten days after or wherein a special order for filing the notice of appeal was obtained within six months after the judgment became final and appealable. There is nothing of record upon which we may base a statement that the trial court recognized appellants’ notice of appeal as timely filed. Consult Lee’s Summit Bldg. & L. Ass’n. v. Cross, 345 Mo. 501, 134 S. W. 2d 19, 22-24; Luckenbach Steamship Co. v. United States, 272 U. S. 533, 535, 71 L. Ed. 394, 47 S. Ct. 186. Under the statutes appellants’ notice of appeal was prematurely filed.
The appeal is dismissed.
The foregoing opinion by Bohling, C., is adopted as the opinion of the court.
Statutory references are to RSMo 1949, and Y. A. M. S.