Edmondson v. Edmondson

• Decision Date: 01 October 1951
• Docket Number: No. 21615,21615
• Citation: 242 S.W.2d 730
• Parties: EDMONDSON v. EDMONDSON.
• Court: Missouri Court of Appeals

Page 730

242 S.W.2d 730

EDMONDSON v. EDMONDSON.

No. 21615.

Kansas City Court of Appeals, Missouri.

Oct. 1, 1951.

Robert L. Jackson, Kansas City, for appellant.

Dwight Roberts, Robert S. Burns, Kansas City, for respondent.

DEW, Judge.

From an order of the trial court sustaining a motion to quash an execution and an order sustaining a motion to quash a second execution on the same judgment, and also from orders overruling the plaintiff's application for an order nunc pro tunc and for attorney's fees, the plaintiff has appealed. The appeals from such orders have been consolidated.

These appeals, as so consolidated, were first taken to the Supreme Court, which court transferred the same to this court on jurisdictional grounds. Prior to the perfecting of the appeals the appellant under Section 130 of the Code, RSMo1949, Sec. 512.060, applied to the Supreme Court for a special order permitting an appeal from the order sustaining the motion to quash the first execution and her application was granted July 10, 1950. Thereafter, while the appeals were still lodged in the Supreme Court the defendant, in his brief, moved for the dismissal of the appeals on the ground that the notice of appeal from the order quashing the first execution was out of time and that the Supreme Court, lacking jurisdiction of the appeals, was not the 'appropriate appellate court' authorized by the code to grant the special order of appeal; that lack of culpable negligence and delay of the applicant was not shown; that a sufficient amount is not involved in the appeals to give the Supreme Court jurisdiction; that the plaintiff was married August 23, 1950. Since the transfer of the cause, the motion to dismiss the appeals is now pending in this court. The order of transfer from the Supreme Court to this court dated January 15, 1951, states that 'This court is without jurisdiction to hear and determine this cause.'

In ruling on the application for a special order permitting an appeal from the order of the trial court on January 28, 1950, sustaining the motion to quash the first execution, the Supreme Court, on July 10, 1950, after consideration of defendant's suggestions in opposition, found that the order complained of was entered within six months theretofore; that there was merit in the claim for a special order; that the delay was not caused by the plaintiff's culpable negligence, and the special order was issued. We shall consider here only the jurisdictional point made, namely, that the order permitting the appeal was not made by the 'appropriate appellate court' (Code 130) and is void for want of jurisdiction of the cause.

It is apparent that the point raised presents a new situation under Section 130 of the Code, and calls for a construction of a part of it not heretofore judicially construed. On the face of the statutory requirements that the application for a special order permitting the filing of a notice of appeal out of time be made to and the order granting it be made by 'the appropriate appellate court', it would reasonably appear that such court must be the court to which the appeal, if allowed, will be taken, and which will have jurisdiction of such an appeal if and when perfected. We cannot assume that the word 'appropriate' is surplusage or meaningless. It certainly was not intended that such special order for appeal be allowed by one appellate court when the application shows on its face that the appeal, if allowed and taken, must be filed in another appellate court. For instance, if the application filed in a court of appeals of one district shows on its face that the appeal, if taken, would have to be filed in the Court of Appeals of another district, or in the Supreme Court, it would be clear that such application could not be entertained because the lack of jurisdiction of the appeal is then apparent and known to the court. In other words, if the want of jurisdiction over the appeal is manifest or can then be fully so determined from the application, the court so applied to is evidently not the 'appropriate' appellate court as required by the statute.

However, unless clearly shown by the application, an appellate court can not finally ascertain its appellate jurisdiction until the transcript is filed, and if it then determines that jurisdiction of the appeal is vested solely in another appellate court, the appeal should be transferred to the court having jurisdiction. Constitution of Missouri, Article 5, Section 11. But that salutary provision of the Constitution would be circumvented if the appeal had come up on a special order under Section 130 of the Code and the lack of jurisdiction of the appeal could not at the time be determined from the application or otherwise, and if such determination upon the later filing of the transcript should have the effect of invalidating the special order of appeal. The right of appeal in such case would thereby be destroyed regardless of the merits either of the application or of the appeal itself and without the court having had an opportunity to determine its jurisdiction of the appeal.

The purpose and spirit of both the code and the court rules require a liberal construction of procedural provisions. The code itself requires its provisions to be so 'construed to secure the just, speedy, and inexpensive determination of every action.' Sec. 2, RSMo1949, Sec. 506.010. The right of appeal is provided for under Section 126, RSMo1949, Sec. 512.020. Suspension of certain procedural provisions is authorized. Sec. 139, RSMo1949, Sec. 512.150. The Supreme Court rules under the constitutional and statutory authority require their construction to be liberal to promote justice, to minimize the number of cases disposed of on procedural questions, and to facilitate and increase the disposition of cases on their merits. Rule 1.28. It is true that appeals are statutory and exist only when the statutes permit, but it is equally true that appeals are favored and statutes granting them must be liberally construed. Ferguson v. Board of Equalization, 350 Mo. 122, 127, 164 S.W.2d 925. Bearing these principles in mind in construing the intent of the Legislature in Section 130 of the Code, we conclude that, in the absence of intentional fraud upon the court or parties and when no want of jurisdiction is apparent in the application for a special order allowing appeal, the order made thereunder granting the same is not invalidated by the fact that when the appeal is later perfected the appellate court determines its lack of jurisdiction of the appeal. The motion to dismiss is overruled.

On January 10, 1949, plaintiff brought suit for divorce, alimony and attorney's fees. There were no children born of the marriage. On March 4, 1949, a divorce decree was granted to the plaintiff by default against the defendant, more particularly described later herein. Prior thereto, on January 28, 1949, the parties had entered into a contract for property settlement. Under the contract it was provided that in view of the separation of the parties and their intention not to reside together again as husband and wife, and in view of the pendency of the divorce case filed by the plaintiff, and for the purpose of settling all questions relative to their properties, independent of the merits or the disposition of said divorce case, or the action of either in respect thereto, and in consideration of the mutual covenants, the defendant would pay the plaintiff the 'sum of two hundred dollars per month payable one hundred dollars on the first of the month and one hundred dollars on the fifteenth of the month for a period unending so long as party of the first part, Betty Edmondson, may live. It is agreed by and between the parties hereto and it is their intention that the permanency of this agreement shall not be changed or altered in any respect by a remarriage or a change of condition of either of the parties hereto.' The contract further provided that such payments 'shall be permanent, and for and in consideration of above permanent payments' the plaintiff would release the defendant from all claims to war bonds, savings account, bank account and moneys accumulated prior thereto. The defendant therein assigned to the plaintiff all of his right in certain household furnishings and effects and the plaintiff assigned to defendant any interest of hers in certain office fixtures, dental fixtures and supplies. It was further stipulated that the parties would execute proper deeds and other instruments to carry out the provisions and intent of the contract.

The decree in the divorce action granted a divorce to the plaintiff and provided, in part, as follows: 'It is further ordered and decreed that the defendant shall pay the plaintiff, for her support and maintenance, the sum of two hundred dollars per month, 1/2 of such two hundred dollars becoming payable on the first day of each month and 1/2 being payable on the 15th day of each month, such payments to start on the 15th day of March, 1949. This monthly payment shall be binding upon the defendant, his heirs, executors and administrators, and shall be a charge upon his estate. Said payments shall continue until, and if, plaintiff remarries, for the rest of her natural life. In entering this decree the court expressly adopts, ratifies and confirms a certain property settlement which has been entered into and signed by the plaintiff and defendant.'

Defendant paid only three and one-half monthly payments and then ceased payments. On three of the checks he had written 'For alimony.' He took receipts, explaining they were for income tax purposes, deductions for alimony. Sometime prior to December 1, 1949, an execution was issued returnable January 9, 1950. Previously, on October 19, 1949, the defendant was adjudged a bankrupt. In his application in the bankruptcy court his sole creditor listed was his former wife, the plaintiff, and the liability described was the sum of...