Dombroski v. Cox
| Decision Date | 14 June 1968 |
| Docket Number | No. 32790,32790 |
| Parties | Roman DOMBROSKI, Plaintiff-Appellant, v. Virgil W. COX and Reliable Insurance Company of Dayton, Ohio, a corporation, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Sherman Landau, St. Louis, for plaintiff-appellant.
Moser, Marsalek, Carpenter, Cleary & Jaeckel, F. Douglas O'Leary, M. E. Stokes, St. Louis, for defendants-respondents.
The plaintiff-appellant instituted suit by a petition in two counts. The first count sought a judgment for damages arising out of personal injuries. It is alleged that the plaintiff was injured when he fell from the attic of Cox's home to the floor below by reason of the failure of Cox to provide him with a safe place in which to work while he was gratuitously assisting Cox with some work in the attic. The second count is against Reliable Insurance Company which insured Cox against liability. It alleges a breach of agreement by the insurer with the plaintiff to pay plaintiff for loss of earnings by reason of his injuries. The defendant moved for a separate trial of the counts and the motion was sustained. Count I against Cox was tried to a jury and it resulted in a verdict and judgment in favor of Defendant Cox. Reliable Insurance Company later moved for a summary judgment on Count II of the petition and the motion was sustained and judgment entered for the defendant insurer on Count II.
On January 10, 1966, trial was had on Count I of the petition wherein Cox was the sole defendant. The evidence of the plaintiff was that Cox, who was his brother-in-law, asked him to help him move a gas stove in the kitchen. This required a rearranging of some pipes that were in the attic. Both of them went to the attic which had no floor and while stepping from one beam to another the plaintiff's foot went between the joists and he fell through the plaster of the ceiling below to the lower floor. In view of the disposition we must make of this appeal it is unnecessary to set out fully the evidence presented.
The cause was submitted to the jury on January 11, 1966, and, as stated, there was a verdict and judgment for Defendant Cox. On April 26, 1966, the court overruled plaintiff's motion for a new trial. No appeal was taken. On August 30, 1966, the defendant insurance company in Count II filed a motion for summary judgment and the motion was sustained and the court entered the judgment in favor of Defendant Reliable Insurance Company on September 16, 1966. After an unavailing motion for a new trial the plaintiff appealed 'from the judgment entered in this action on the 16th day of September, 1966.'
The appellant here seeks a review of both judgments entered. Even if not raised by parties we must determine if the judgment on Count I is properly before us for review as that is a matter of our jurisdiction. If a notice of appeal is not timely filed we are without jurisdiction of the case and required to dismiss the appeal. Fagan v. Hamilton Bank, Mo., 327 S.W.2d 201. Section 512.050, RSMo., V.A.M.S., provides:
* * *'
In the matter before us no notice of appeal from the judgment on Count I was ever filed.
If the plaintiff relied upon the general rule that a judgment, to be appealable under § 512.020, RSMo, V.A.M.S., must dispose of all issues and parties in a case he overlooks the fact that § 512.020 is modified by Supreme Court Rule 82.06, V.A.M.R. Bays v. Lueth, Mo., 323 S.W.2d 236. Rule 82.06 provides:
'When a separate trial of any claim, counterclaim or third-party claim is ordered in any case and a jury trial thereof is had, the separate judgment entered upon the verdict therein shall be deemed a final judgment for the purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri. * * *'
We therefore hold that no appeal, insofar as Count I is concerned, is before us as the judgment was final and unappealable before Count II was tried.
As to Count II, the plaintiff alleges that the Reliable...
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Marriage of Short, In re, No. 18078
...appellate court is without jurisdiction and must dismiss the appeal. Boyer v. Shay, 675 S.W.2d 147, 148 (Mo.App.1984); Dombroski v. Cox, 431 S.W.2d 680, 681 (Mo.App.1968). We begin our analysis of the timeliness issue by recognizing that a notice of appeal must be filed not later than ten d......
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...894 S.W.2d 204, 206 (Mo.App.E.D.1995). See also McKean v. St. Louis County, 964 S.W.2d 470, 471 (Mo.App. E.D.1998); Dombroski v. Cox, 431 S.W.2d 680, 682 (Mo.App.1968). We agree with the trial court that even if a valid contract existed, Plaintiff failed to establish a breach because the re......
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Lauria v. Wright
...of an inconsistent remedial right." Baker v. Aetna Casualty & Surety Co., 193 S.W.2d 363, 367 (Mo.App.1946); Dombroski v. Cox, 431 S.W.2d 680, 682 (Mo.App.1968). Accordingly, the trial court's action in allowing plaintiff to amend to allege a new action for damages for fraud after judgment ......
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Mitchell v. Commercial Standard Ins. Co.
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