^* Headnotes 1. Appeal and Error, 3 C.J., Section 431; 2. New Trial, 29 Cyc., p. 929. Plaintiff brought suit against defendant, before a justice of the peace, to recover on an accident and health insurance policy. Plaintiff recovered judgment in the justice court. Defendant appealed to the circuit court, the appeal being returnable to the October term, 1923. On December tenth following, plaintiff paid the filing fee, and had the case affirmed against defendant. On the twenty-fourth day of December following the date of the affirmance of the judgment, defendant filed a motion to set aside the judgment, and the circuit court sustained such motion to set aside its order made fourteen days prior thereto affirming the judgment of the justice. The plaintiff filed a motion to set aside the order of the trial court sustaining defendant's motion to set aside the affirmance of the judgment, which the court overruled, and plaintiff has appealed to this court.

There are various questions raised by both plaintiff and defendant here, but we are precluded from a consideration of many of these questions, interesting as they may be, because no appeal lies here. When the circuit court sustained the motion to set aside the affirmance of the judgment, there was no final judgment in the case. The motion to set aside the affirmance of the judgment cannot be considered as a motion for new trial, because it *Page 54 was not filed within the statutory period. However, it was such a motion as the court had a right to consider. [Dower v. Conrad,207 Mo. App. 176, 232 S.W. 174.]

The question of whether an appeal would lie from such an order as this has been discussed by the appellate courts of this state many times, and has led to some confusion.

Our Supreme Court, in Bussiere's Admr. v. Sayman, 257 Mo. 303, 165 S.W. 796, went into this question thoroughly, and it was there held that where the court sustained a motion, or petition, to set aside a default judgment previously obtained by plaintiff, such plaintiff could not appeal because there was no final judgment from which an appeal would lie, and there was no "special order after final judgment" because there was no final judgment in the case.

If the court had overruled defendant's motion in the instant case, the judgment, of course, would have been final as to such defendant, but the motion having been sustained, the case was reopened, and the judgment which had been entered was no longer in existence.

In the Sayman case the court evidently intended to clear this matter up and settle the question, but evidently it was not entirely successful, because very soon thereafter the Judges of the Springfield Court of Appeals, in Stanton v. Hanna,185 Mo. App. 91, 170 S.W. 452, were unable to agree as to when an appeal would lie under such circumstances as we have in the instant case, and certified the case to the Supreme Court. The Supreme Court in Stanton v. Hanna, 199 S.W. 145, reaffirmed the doctrine of the Sayman case, and held that such an appeal would not lie under such facts as we have before us. [See, also, Holder v. Chidister (Mo. Sup.), 193 S.W. 568.] If the court had overruled defendant's motion to set aside the affirmance of the judgment, and defendant had appealed, we would be confronted with an entirely different situation, but the court sustained *Page 55 the defendant's motion, and therefore plaintiff has no right to appeal from such action.

There is some language used in the case of Audsley v. Hale (Mo. Sup.), 261 S.W. 117, and Scott v. Rees (Mo. Sup.), 253 S.W. 998, which is a little misleading. But an examination of the facts in those cases will disclose that their ruling is in accordance with our holding.

In view of the above situation, plaintiff's appeal is dismissed. Daues, P.J., and Becker, J., concur.