Boyd v. Logan Jones Dry Goods Co.

• Decision Date: 18 September 1934
• Docket Number: 31582
• Parties: Ida Boyd, Appellant, v. Logan Jones Dry Goods Company, a Corporation
• Court: Missouri Supreme Court

74 S.W.2d 598

335 Mo. 947

Ida Boyd, Appellant, v. Logan Jones Dry Goods Company, a Corporation

No. 31582

Supreme Court of Missouri

September 18, 1934

Rehearing Overruled July 17, 1934.

Motion to Transfer to Banc Overruled September 18, 1934.

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge; Opinion filed at May Term, 1934, June 12, 1934; motion for rehearing filed; motion overruled July 17, 1934; motion to transfer to Court en Banc filed; motion overruled at September Term, September 18, 1934.

Appeal dismissed.

Barnett & Coolidge and Thomas & Flora for appellant.

Harris & Koontz for respondent.

Hyde C. Ferguson and Hyde, CC., concur.

OPINION

HYDE

This case, coming recently to the writer, is an action for $ 10,000 damages for the death of plaintiff's husband alleged to have been caused by the negligence of defendant in the construction and maintenance of a stairway. The trial court sustained a demurrer to plaintiff's evidence. Plaintiff took an involuntary nonsuit, thereafter filed a motion to set it aside, which was overruled, and then appealed, as to all of which the record shows the following:

"May 19th (being a regular term day of the May Term, 1931) -- 'Now, on this 9th day of May, the same being a regular term day of the May Term, 1931, of this court, comes on again for trial the above-entitled cause, pursuant to adjournment thereof, on May 18th, 1931, and comes the jury impaneled herein on said May 18th, 1931, and come the parties by their attorneys, and the parties submit opening statements to the jury, and the plaintiff submits evidence to sustain the issues of her petition herein, and at the close of the plaintiff's evidence, the defendant requests the court to give a peremptory instruction in favor of the defendant, in the nature of a demurrer to plaintiff's evidence, which instruction, over the objection of the plaintiff, the court gives.

"'Thereupon the plaintiff excepts to the giving of said instruction of the court, and, thereafter, and before said instruction is read to the jury, the plaintiff prays the court to enter an involuntary nonsuit herein, with leave to move to set aside the same, which involuntary nonsuit, with leave to move to set the same aside, is ordered entered by the court. And, thereafter, the jury is discharged by the court from further consideration of said cause.'

"May 21st (being a regular term day of the May Term, 1931) -- Plaintiff files motion to set aside involuntary nonsuit.

"June 20th (being a regular term day of the May Term, 1931) -- Plaintiff's motion to set aside involuntary nonsuit is by the court heard and overruled, to which ruling plaintiff excepts. Forthwith, plaintiff files her application and affidavit for an appeal from the order of the court overruling her motion to set aside the involuntary nonsuit in said cause, and the court grants and allows said appeal to the Supreme Court of Missouri, as prayed. And it is further ordered by the court that the plaintiff be given until the time required by law to file her bill of exceptions herein."

The application and affidavit for appeal was as follows:

"Comes now the plaintiff in the above-entitled cause and shows to the court that she has filed herein an affidavit for appeal and prays the court to grant her an appeal from the order of this court overruling plaintiff's motion to set aside her involuntary nonsuit taken herein, to the Supreme Court of Missouri.

"(Signatures of attorneys for plaintiff.)"

"State of Missouri, County of Jackson, ss.

"Ida Boyd, plaintiff herein, being duly sworn, makes oath and states that she is plaintiff and appellant herein and that the appeal prayed for in the above cause is not made for vexation or delay but because appellant and affiant believes that she is aggrieved by the order of the court overruling her motion to set aside the involuntary nonsuit.

"(Signature of affiant and jurat of notary.)"

The first duty of this court in any case, whether the question is raised or not, is to see if it has jurisdiction. Since the right of appeal, an actions at law, did not exist at common law but is conferred solely by statute, this court has no authority to act on appeals beyond the provisions made by the Legislature. [Stephens v. Oberman Manufacturing Co., 334 Mo. 1078, 70 S.W.2d 899, and cases cited.] Since no right of appeal exists except as provided by statute, a compliance with mandatory statutory procedure is essential. Section 1018, Revised Statutes 1929, establishes the right of appeal to this court and states the judgments and orders which are appealable. An appeal lies from an order sustaining a motion to set aside an involuntary nonsuit because it is in effect an order granting a new trial which is covered by the statute, but no appeal is provided therein from an order overruling a motion to set aside an involuntary nonsuit, and none lies. [Bonanomi v. Purcell, 287 Mo. 436, 230 S.W. 120; State ex rel. Kansas City Stock Yards Co. v. Trimble, 333 Mo. 51, 62 S.W.2d 473.] The record here shows that it was only, from the order overruling her motion to set aside the involuntary nonsuit, that plaintiff sought an appeal. Her application so states, but what makes the matter conclusive is that her affidavit for appeal states that "she is aggrieved by the order of the court overruling her motion to set aside the involuntary nonsuit."

A written application for an appeal is not required and may be disregarded but the affidavit required by the statute is jurisdictional. Therefore, the identification of the order sought to be appealed from, must be determined by the statements of the affidavit. [Pence v. Kansas City Laundry Service Co., 332 Mo. 930, 59 S.W.2d 633; State ex rel. Kansas City Stock Yards Co. v. Trimble, 333 Mo. 51, 62 S.W.2d 473.] It also appears that the order allowing the appeal herein grants the appeal from the order overruling plaintiff's motion to set aside the involuntary nonsuit so that,...