Franklin v. Franklin, 23116
| Decision Date | 06 March 1961 |
| Docket Number | No. 23116,23116 |
| Parties | O. K. FRANKLIN, Respondent, v. Vivian FRANKLIN, Appellant. |
| Court | Missouri Court of Appeals |
Blackford, Imes, Compton & Brown, J. William Blackford, Kansas City, for appellant.
Fred F. and Robert L. Wesner, Sedalia, for respondent.
We are faced at the outset with the initial question of whether the procedure for taking an appeal was sufficiently complied with to vest jurisdiction of the appeal in this court. A brief summary of the events leading up the appeal will suffice to give an understanding of the precise question involved.
On February 21, 1955, respondent, O. K. Franklin, was granted a divorce by the Circuit Court of Saline County, Missouri, from appellant, Vivian Franklin, who was given custody of the two minor children (boys) of the marriage, subject to vacation and other visitation rights in the respondent. Appellant retained custody of the two children until February 20, 1958, when she filed a motion to modify the divorce decree to increase 'alimony' and child support. Respondent cross-filed asking for complete custody of the children for stated reasons. The circuit judge of Saline County was disqualified, and the Supreme Court appointed Honorable Gerald Cross of the Fifth Judicial Circuit to hear the motions. By agreement of the parties, for convenience the cause was heard in one of the circuit court rooms of the 16th Judicial Circuit in Kansas City by Judge Cross. On August 26, 1959, after a full hearing with all parties present the trial court (Judge Cross) found the issues for respondent on both motions, denied appellant's motion and entered its decree and judgment giving custody of the minor children to respondent with visitation privileges in appellant. On August 29, 1959, appellant filed an application for change of venue. Also, on August 29, 1959, appellant filed a motion to set aside the decree and judgment and to grant appellant a new trial, or, in the alternative, for the court to enter its decree in favor of appellant on her motion to modify the decree and increase the child support judgment. The application for change of venue and the mentioned motion for new trial were duly called up by appellant on October 10, 1959, presented and heard, and with both counsel present were on that date overruled and denied.
Appellant has never filed a notice of appeal with the clerk of any circuit court. On October 15, 1959, appellant mailed to the Clerk of the Kansas City Court of Appeals a notice of appeal with an attached check for $10 and mailed a copy of the notice of appeal to respondent. The Clerk of the Kansas City Court of Appeals acknowledged that on October 16, 1959, he had received the notice of appeal and docket fee, and on that same day the clerk mailed respondent a copy of that acknowledgement.
On March 2, 1960, the transcript of the hearing before Judge Cross was filed in the Circuit Clerk's office, Saline County, Marshall, Missouri, and on March 28, 1960, the transcript was filed in the Kansas City Court of Appeals.
It is respondent's position, supported by appropriate motion to dismiss the appeal, that the Kansas City Court of Appeals does not have jurisdiction of the attempted appeal for the reason that appellant did not file with the clerk of the trial court a notice of appeal within ten days after judgment, as required by the statutes.
Section 512.050 RSMo 1949, V.A.M.S. (now Rule 82.04, Rules of Civil Procedure, V.A.M.R.), provides in applicable part: (Italics ours.)
Section 512.060 RSMo 1949, V.A.M.S. (now Rule 82.07(a), Rules of Civil Procedure), provides a party seeking reversal of a final judgment (Italics ours.)
Thus, it appears although more than sixteen months have elapsed since the judgment appealed from became final appellant has never filed a notice of appeal with the clerk of the trial court and has not endeavored, timely or otherwise, to obtain a special order from this court to file a notice of appeal in the trial court.
There is no right as such to appeal from an adverse judgment. See 2 Am.Jur., Appeal and Error, Sec. 6, p. 847; State ex rel. Orscheln Bros. Truck Lines, Inc., v. Public Service Commission of Missouri, 231 Mo.App. 293, 98 S.W.2d 126(3). Authority to appeal must be found in an applicable constitutional provision, statute or Civil Procedure Rule. When such authority is relied upon care must be taken to follow the procedural steps provided; otherwise, there is danger that the omitted action may result either in a failure to obtain appellate court jurisdiction of the appeal, or dismissal of the appeal by the appellate court for failure to comply with the procedure provided.
Section 512.050 RSMo 1949, V.A.M.S., and its successor, Civil Procedure Rule 82.04, as they relate to both time and place for filing the notice of appeal are mandatory. Failure to file a notice of appeal with the clerk of the trial court...
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