Coyne v. Southwestern Bell Tel. Co.
| Decision Date | 10 July 1950 |
| Docket Number | No. 41710,No. 2,41710,2 |
| Citation | 360 Mo. 991,232 S.W.2d 377 |
| Parties | COYNE et al. v. SOUTHWESTERN BELL TELEPHONE CO |
| Court | Missouri Supreme Court |
Robert W. Herr, St. Louis, C. O. Inman, St. Louis, of counsel, for appellants.
John Mohler, H. O. Nouss, Francis M. Barnes III, St. Louis, for respondent.
On August 10, 1949, the circuit court of the city of St. Louis sustained defendant's motion to dismiss the plaintiffs' amended petition, and also dismissed the cause of action with prejudice. From that order of dismissal the plaintiffs have appealed to this court.
The defendant filed a motion to dismiss plaintiffs' appeal because this court has no jurisdiction of it. The reason assigned in this motion is that the trial court entered a final judgment on April 18, 1949, when it sustained defendant's motion to dismiss. No appeal was taken from this order.
This motion to dismiss was ordered taken with the case. But regardless of defendant's motion to dismiss, it is our duty to examine the record to ascertain if we have jurisdiction of the appeal.
The record shows that defendant filed a motion to dismiss plaintiffs' petition for th reason that it fails to state a cause of action against the defendant. On April 18, 1949, the trial court sustained defendant's motion to dismiss. On April 28, 1949, the court entered an order enlarging the period for pleading until May 18, 1949, and on May 13, 1949, the trial court made an order again enlarging the period of time for pleading until June 1, 1949. On June 2, 1949, plaintiffs filed their amended petition and this amended petition was dismissed on motion of defendant on August 10, 1949.
Section 101 of the new code, Laws of Mo., 1943, page 385, Mo.R.S.A. Sec. 847.101, provides: 'A dismissal with prejudice operates as an adjudication upon the merits. * * * and any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify.' The order of dismissal on April 18, 1949, sustained defendant's motion to dismiss; it was silent as to any intention to give plaintiffs time to file an amended pleading. The defendant's motion to dismiss was on the ground that plaintiffs' petition failed to state a cause of action.
We had this situation before us in the case of Jones v. Williams, Mo.Sup., 209 S.W.2d 907, loc. cit. 911. In that case we said:
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State ex rel. Wells v. Mayfield, 44690
...17, 1953, and appeal duly taken, resulting in the opinion referred to above. We are mindful of the case of Coyne v. Southwestern Bell Tel. Co., 360 Mo. 991, 232 S.W.2d 377, cited by respondent, and of Section 510.150 RSMo 1949, V.A.M.S. But it fairly appears from the record (and the necessa......
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Heard v. Frye's Estate
...McDOWELL, J., concur. 1 Section 510.150 RSMo 1949, V.A.M.S.; Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907; Coyne v. Southwestern Bell Telephone Co., 360 Mo. 991, 232 S.W.2d 377; Frank v. Sinclair Refining Co., 363 Mo. 1054, 256 S.W.2d 793; State ex rel. State Highway Commission v. Shultz,......
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Coonis v. Rogers
...v. Pinkham, Mo., 395 S.W.2d 166, 168(2).3 Pizzo v. Pizzo, 365 Mo. (Banc) 1224, 295 S.W.2d 377, 379(1); Coyne v. Southwestern Bell Telephone Co., 360 Mo. 991, 232 S.W.2d 377--378(1); Deeds v. Foster, Mo., 235 S.W.2d 262, 265(1, 2); Anderson v. Metcalf, Mo., 300 S.W.2d 377, 378(1); Cantrell v......
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Sutton v. City of St. Joseph
...within 10 days thereafter. In support of this contention he cites Runnion v. Paquet, Mo.App., 233 S.W.2d 803; Coyne v. Southwestern Bell Tel. Co., 360 Mo. 991, 232 S.W.2d 377; Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907; Section 510.150 RSMo 1949, Those cases hold that an order sustainin......