C & O Distributing Co. v. Milner Hotels, Inc.
| Decision Date | 01 October 1957 |
| Docket Number | No. 22625,22625 |
| Citation | 305 S.W.2d 737 |
| Court | Missouri Court of Appeals |
| Parties | The C & O DISTRIBUTING COMPANY, Inc., Appellant, v. MILNER HOTELS, Inc., Respondent. |
Rodger J. Walsh, Albert Thomson, Kansas City, for appellant.
Henry W. Buck, Karl F. Schmidt, Albert C. McClain, Kansas City, for respondent.
This is an appeal from a judgment entered by the court for the defendant at the close of plaintiff's evidence on the defendant's motion for a directed verdict.
Plaintiff (appellant), a corporation, is a subtenant of the defendant (respondent) of two rooms on the main floor of a building located in Kansas City. It filed suit against the defendant for $6,000 as damages for alleged injury to its property, located in the two rooms, resulting from a leaking water pipe in the building. At the close of plaintiff's evidence defendant moved for a directed verdict. The trial court sustained this motion and directed the jury to return its verdict for the defendant, which it did. The trial court then entered judgment accordingly. Nine days later plaintiff, without filing or presenting to the trial court a motion for a new trial, filed its notice of appeal. Defendant then filed in this court its motion to dismiss the appeal for the reason that plaintiff failed to comply with Supreme Court Rule 3.23 (42 V.A.M.S.) by failing to file and present to the trial court a motion for a new trial before filing the appeal. We have taken this motion to dismiss with the case.
Thus, we are met at the outset with a determination of the question of whether or not following the sustaining of defendant's motion for a directed verdict at the close of plaintiff's case it was necessary for plaintiff to file a motion for a new trial and to include therein its contention that under the evidence it had made a submissible jury case and that the trial court had erred in sustaining the motion for the directed verdict, in directing verdict for defendant and in entering judgment thereon.
Plaintiff contends a plaintiff can file a direct appeal following the sustaining of a defendant's motion for a directed verdict at the close of the plaintiff's case. Plaintiff reasons that under such circumstance there is but one question involved; namely, under the evidence did plaintiff make a submissible case? As to this one question plaintiff says the trial court had ample opportunity to pass on it, and did pass on it when it passed on the motion for the directed verdict, and, thus, there is no need for the trial court to have a second opportunity to pass on it by requiring the motion for a new trial.
Defendant's position is that under Supreme Court Rule 3.23 this alleged error of the trial court in sustaining the motion and directing a verdict for defendant must be presented to the trial court in a motion for new trial in order for it to be preserved for appellate review. Otherwise, the appellate court would be rendering final decisions on questions without giving the lower courts an opportunity to review their own alleged errors. Further, if appellants can secure appellate review without filing a motion for a new trial, and thus avoid the dangers of filing an incomplete or erroneous motion, Supreme Court Rule 3.23 will be emasculated and the salutary effect it was intended to have will be nullified.
The pertinent provisions of Supreme Court Rule 3.23 are: 'Allegations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for a new trial; except questions of jurisdiction over the subject matter, questions as to sufficiency of the pleadings to state a claim or defense, questions of the sufficiency of the evidence to support the judgment in cases tried as provided by Section 114 (V.A.M.S. Sec. 510.310), questions authorized by Section 113 (V.A.M.S. Sec. 510.290) to be presented in a motion for judgment, questions authorized by Section 114(c) (V.A.M.S. Sec. 510.310(c)) to be presented in a motion to amend the judgment and opinion, or questions under Section 99(b) (V.A.M.S. Sec. 510.130) authorized to be presented in a motion to set aside a dismissal.' (Emphasis ours.)
Supreme Court Rule 3.23 with certain named exemptions makes it mandatory for allegations of error to be presented to the trial court in a motion for a new trial in order to be preserved for appellate review. Marquand Development Corp. v....
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Gosnell v. Gosnell
...for appellate review, must be presented to the trial court in a motion for new trial' is mandatory [C & O Distributing Co. v. Milner Hotels, Mo.App., 305 S.W.2d 737, 738(1)]; and, excepting only those questions particularized and enumerated in Rule 3.23, a party is precluded from urging on ......
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Arnold v. Fisher
...appellate review, must be presented to the trial court in a motion for a new trial" is held to be mandatory [C & O Distributing Co. v. Milner Hotels, Mo.App., 305 S.W.2d 737, 738(1); Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230, 234(5) ]; and excepting only those questions particularized and......
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...Procedure. Sapp v. Key, Mo.Sup., 287 S.W.2d 775, 780; Millar v. Berg, Mo.Sup., 316 S.W.2d 499, 501--502; C & O Distributing Co. v. Milner Hotels, Inc., Mo.App., 305 S.W.2d 737, 739. The question is whether or not the plaintiffs made a submissible case against the defendants, or, stated diff......
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Bybee v. Dixon
...[Arnold v. Fisher, Mo.App., 359 S.W.2d 602, 609; Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230, 234(5); C & O Distributing Co. v. Milner Hotels, Mo.App., 305 S.W.2d 737, 738(1)]; and, excepting only those questions particularized and enumerated in Rule 79.03 (none of which is applicable to th......