Asher v. Thomas, 8088

• Decision Date: 10 October 1962
• Docket Number: No. 8088,8088
• Citation: 360 S.W.2d 957
• Parties: Ruth ASHER and Ernest Asher, Plaintiffs-Respondents, v. Albert THOMAS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 957

360 S.W.2d 957

Ruth ASHER and Ernest Asher, Plaintiffs-Respondents, v. Albert THOMAS, Defendant-Appellant.

No. 8088.

Springfield Court of Appeals, Missouri.

Oct. 10, 1962.

Wm. T. Powers, Jefferson City, for defendant-appellant.

Joe R. Ellis and Royle Ellis, Cassville, for plaintiffs-respondents.

RUARK, Presiding Judge.

This is an appeal from a judgment wherein the plaintiffs-respondents recovered damages in the total sum of $5,250. Judgment was rendered on August 10, 1961. On August 21, 1961, defendant filed motion for judgment in accordance with defendant's motion for judgment at the close of the evidence, or in the alternative, for new trial. On August 31, 1961, defendant filed motion to amend the foregoing motion by inserting a new ground. On November 14, 1961, the foregoing motions were overruled by the court. On November 29, 1961, defendant filed notice of appeal wherein he appealed from the judgment entered 'on the 21st day of November, 1961.' On February 23, 1962, time for filing of transcript was extended to May 26, 1962, because of the inability of the court reporter to prepare the transcript. On May 26, 1962, the transcript was approved by counsel.

On August 25, 1962, respondents served appellant with copy of motion to dismiss the appeal with notice that they would present the same to this court on September 17, 1962, the day the case was set for argument on our docket, and on argument day the motion was so presented. This motion is based on the fact that the judgment became final on November 14, 1961; that notice of appeal was filed on November 29, 1961, and, therefore, was not within 10 days; that no special order permitting appeal had been entered and that it was more than six months from date of final judgment. On the same day (September 17, 1962), appellant filed his suggestions in opposition, wherein he contended that the appeal should not be dismissed because (1) appellant had no notice of the action of the trial court in overruling the motion for new trial on November 14, 1961 and, as the 90-day period (after which the motion is overruled automatically) expired on November 21, 1961 (by our calculations it would have expired on November 20, 1961), the motion was timely, (2) appellant was not aware of the entry overruling the motion for new trial until he received a copy of respondent's motion to dismiss on August 25, 1962; that he did not receive the transcript until May 26, 1962, and that in the meantime he had been put to the expense of appeal bond, transcript and printing of briefs, (3) the appeal is in good faith, (4) during the period extending from the dates of filing of motion for new trial and motion to amend and up to November 14, 1961, the appellant called the circuit clerk's office several times by phone (He resided in another part of the state.) to ascertain whether any ruling had been made on such motions, and, 'not being notified,' filed his notice of appeal in the belief that the judgment became final on November 21, 1961; that any negligence was excusable under the circumstances, and (5) prayed that the rules be suspended under Civil Rule 83.09, V.A.M.R., and that the motion to dismiss be overruled. These suggestions are not verified or supported by any affidavit or other proof.

We must of course look first to our jurisdiction.

Civil Rule 82.04, V.A.M.R., provides that no appeal shall be effective unless notice be filed not later than 10 days after the judgment or order appealed from becomes final. Civil Rule 82.05, V.A.M.R., provides that, in the event a motion for new trial is filed, the judgment becomes final at the expiration of 90 days after the filing of such motion, or if such motion is passed on at an earlier date, then at the date of disposition of such motion.

It has been held consistently that the statutes and successor civil procedure rules, as they relate to time for filing of notice of appeal, are mandatory, and that such timely filing is an indispensable prerequisite to appellate jurisdiction. Franklin v. Franklin, Mo.App., 344 S.W.2d 282; Robb v. Casteel, Mo.App., 340 S.W.2d 180; Fagan v. Hamilton Bank, Mo., 327 S.W.2d 201; Hance v. Johnson, Stephens & Shinkle Shoe Co., Mo.App., 306 S.W.2d 80; Heard v. Frye's Estate, Mo.App., 319 S.W.2d 685; Starr v. Mitchell, Mo., 237 S.W.2d 123; McPike v. St. Louis County Bank, Mo.App., 193 S.W.2d 961.

Civil Rule 83.09, V.A.M.R., provides (among other provisions aimed at liberalizing...