Christeson v. Christeson

• Decision Date: 16 November 1945
• Docket Number: No. 6578.,6578.
• Parties: CHRISTESON v. CHRISTESON et al.
• Court: Missouri Court of Appeals

190 S.W.2d 568

CHRISTESON v. CHRISTESON et al.

No. 6578.

Springfield Court of Appeals. Missouri.

November 16, 1945.

Appeal from Circuit Court, Pulaski County; W. E. Barton, Judge.

Action by C. F. Christeson against Fred Christeson and others. Judgment for plaintiff, and defendants appeal.

Appeal dismissed.

T. A. Shockley, of Waynesville, for appellants.

Breuer & Northern, of Rolla, for respondent.

BLAIR, Judge.

The relationship of the parties is well stated in the first paragraph of the appellants' statement, as follows: "The appellants, Fred Christeson is a brother to the plaintiff, C. F. Christeson and Donald Christeson is a son of Fred Christeson and a nephew of respondent, C. F. Christeson and the appellant, Harry Hendrix is a son-in-law of Fred Christeson and nephew of respondent by marriage, at all times hereinafter mentioned the appellants were residents of Pulaski County, Missouri, and the respondent was a resident of Miller County, Missouri."

We have carefully read the transcript or bill of exceptions, as certified by the clerk of the Circuit Court of Pulaski County, Missouri, and have concluded that it is useless to state the facts constituting the merits of the case or the contentions made in appellants' brief, because a reading of the transcript, as so certified, convinces us that the appeal taken by defendants was premature, and therefore we have no appellate jurisdiction.

The certified transcript shows that on February 13, 1945, a jury being waived, the trial judge rendered judgment for plaintiff (respondent here). The transcript further shows that on the same day, to-wit, February 13, 1945, defendants (appellants here) filed their joint motion for new trial. Under Section 116, page 388, of the Laws of Missouri for 1943, Mo.R.S.A. § 847.116, it is provided that "if a timely motion (for new trial) is filed the judgment is not final until disposition of the motion."

The transcript shows that such motion for new trial was not disposed of until April 19, 1945. The judgment of February 13, 1945, therefore, did not become final before April 19, 1945, which was even at a subsequent term of said court.

The transcript further shows that the notice of appeal was filed February 13, 1945. Section 129, page 390, Laws of Missouri for 1943, Mo.R.S.A. § 847.129. At the time the appeal was taken the judgment was not final. The trial judge might have sustained such motion for new trial, and there would then have been no judgment from which to...