Brock v. Steward

• Citation: 519 S.W.2d 365
• Decision Date: 04 February 1975
• Docket Number: No. 35071,35071
• Parties: Terri Sue BROCK, a minor, by her next friend and mother, Joyce Lakas, and Joyce Lakas, Plaintiffs-Respondents, v. Mrs. Richard STEWARD, a/k/a Jean R. Steward, Defendant-Appellant. . Louis District, Division One
• Court: Court of Appeal of Missouri (US)

Page 365

519 S.W.2d 365

Terri Sue BROCK, a minor, by her next friend and mother, Joyce Lakas, and Joyce Lakas, Plaintiffs-Respondents, v. Mrs. Richard STEWARD, a/k/a Jean R. Steward, Defendant-Appellant.

No. 35071.

Missouri Court of Appeals, St. Louis District, Division One.

Feb. 4, 1975.

Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Daniel T. Rabbitt, Jr., St. Louis, for defendant-appellant.

Steinger, Schaeffer & Schaeffer, Herbert D. Schaeffer, Clayton, for plaintiffs-respondents.

KELLY, Judge.

Appellant, the defendant in the trial court, brought this appeal from an order of the Circuit Court of St. Louis County granting the respondents, the plaintiffs in the trial court, a new trial following a jury verdict in behalf of the appellant and against the respondents. This litigation has its genesis in a pedestrian-automobile collision. Respondents, a 13-year old female child and her mother, filed their petition in two Counts. In Count I recovery was sought for personal injuries sustained by the child and in Count II the mother as the natural guardian of the child sought recovery for doctor, hospital and medical expenses she allegedly incurred as a direct result of the injuries sustained by the child as a result of the incident. We shall hereinafter refer to the parties to this appeal as plaintiffs and defendant, the status they occupied in the trial court.

Following the adverse jury verdict the plaintiffs filed a timely motion for new trial which was sustained in December 15, 1972, in an order of the trial court which did not specify the grounds for the ruling. This order is as follows: 'Plaintiffs' motion for new trial is sustained.' Thereafter, on December 21, 1972, defendant filed her notice of appeal from the order of December 15, 1972, sustaining plaintiffs' motion for new trial and simultaneously filed therewith an 'Explanation of Appeal' stating, among other things, that '(t)he order of December 15, 1972 sustaining plaintiffs' motion for a new trial is an appealable order and the defendant states that said action on the part of the trial court was erroneous and contrary to the Missouri Rules of Civil Procedure, V.A.M.R., and in particular, Rule 78.01, and the judgment in favor of defendant should be reinstated.' On December 26, 1972, pursuant to Rule 81.19, a letter from the defendant's attorney to the official court reporter requesting that the transcript on appeal be prepared was filed. Thereafter, on December 28, 1972, a court memorandum was filed which reads as follows 'On Plaintiffs' motion for new trial on the grounds of 6 and 7 of Plaintiffs' motion for new trial.' On January 5, 1973, defendant, pursuant to the provisions of Rule 84.05(b) filed a statement requesting that the plaintiffs prepare and file the original brief on or before the time required for the filing of the original brief in the appeal. Plaintiffs filed the original brief in this cause in compliance with Rule 84.05(b).

Defendant, in her brief, contends that the Points raised in plaintiffs' brief are not properly before this Court for review because the trial court failed to specify any grounds in its order granting plaintiffs' motion for new trial as required by Rule 78.01 and pursuant to Rule 84.05 the order of the trial court is presumed erroneous and on appeal no discretionary grounds may be used in an attempt to justify the order of the trial court. She argues that the trial court had no jurisdiction to amend its original order sustaining plaintiffs' motion for new trial to state the grounds therefor. We agree.

Defendant takes the position that the order of December 28, 1972, purports to be an amendment of the trial court's order of December 15, 1972. From our vantage point, the record does not unequivocally support this position taken by the defendant because the order itself does not so read, nor was the order of December 15, 1972, amended by interlineation to conform thereto. Plaintiffs' have not favored us with a brief on this point but apparently concede that if the latter order was intended to be an amendment to the original order it was ineffective because they complied with the defendant's request that they file the first brief pursuant to the provisions of Rule 84.05(b). Assuming arguendo that the order of December 28, 1972, was intended by the trial court to be an amendment to the order of December 15, 1972, so as to bring him within compliance with the requirements of Rule 78.01 that every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted, we hold that it was ineffective for that purpose because he lacked jurisdiction over the cause at that time for the purpose of effecting such an amendment.

Once the defendant filed her notice of appeal the trial court lost jurisdiction of the cause for most purposes. On December 21, 1972, the defendant filed her notice of appeal with the Clerk of the Circuit Court of St. Louis County and deposited the docket fee with said Clerk. At that time, although the trial court was not thereby divested of jurisdiction over its records, or of the authority to exercise functions of a purely ministerial or executive character prior to the filing of the transcript on appeal in this Court, it did lose jurisdiction of the cause insofar as the exercise of any judicial functions are concerned. Herrick...