Glassburner v. Burtrum
| Decision Date | 11 September 1967 |
| Docket Number | No. 1,No. 52387,52387,1 |
| Citation | 418 S.W.2d 119 |
| Parties | Harry M. GLASSBURNER and Helen L. Glassburner, Respondents, v. Joe BURTRUM and Norma Burtrum, His Wife, Appellants |
| Court | Missouri Supreme Court |
John R. Martin, Joplin, for respondents.
Edward G. Farmer, Jr., Leo W. Schrader, Joplin, for appellants.
HOUSER, Commissioner.
This is a suit to quiet title to 20 acres of land in Newton County, brought by Harry M. Glassburner and wife, purchasers at an execution sale, against Joe Burtrum, the judgment debtor, and his wife. Defendants Burtrum filed a cross-bill for improvements made on the property. The circuit court found the issues on petition and cross-bill for plaintiffs and against defendants, decreed title in plaintiffs, and denied recovery for improvements. Defendants appealed.
Respondents filed a motion to dismiss the appeal for untimely filing of the notice of appeal and failure to file a motion for new trial. This motion is overruled for the following reasons. The judgment was entered on June 17. No motion for new trial having been filed the judgment became final on July 17 (thirty days after entry of judgment). Civil Rule 82.05(a), V.A.M.R. When no motion for new trial is filed, a notice of appeal may be filed by leave of the trial court 'at any time after the expiration of the time for filing a motion for new trial and within thirty days after entry of judgment.' Idem. The time for the filing of a motion for new trial expired July 2. The thirtieth day after the entry of judgment was July 17. The notice of appeal was filed between those two dates, on July 15. The notice of appeal, therefore, was timely filed, and the only question is whether failure to obtain leave of the trial court to file the notice of appeal requires dismissal of the appeal. We think not. Any party has an absolute right of appeal, Civil Rule 82.04, but he should not execrise that right during the 30-day period during which the trial court retains control over its judgment, Civil Rule 75.01, without first obtaining leave. Failure to apply for leave, however, does not affect the validity of the appeal. It merely makes the filing of the notice of appeal premature. Under Civil Rule 82.05(b) notices of appeal filed prematurely are considered as filed immediately after the time the judgment becomes final for the purpose of appeal.
It is a rule of equity, as well as in actions at law, that the filing of a motion for a new trial is a mandatory prerequisite in order to preserve for review allegations of error. Civil Rule 79.03; Adams v. Richardson, Mo.Sup., 337 S.W.2d 911. There are, however, exceptions to this rule, and this case comes within one of time. One exception is that notwithstanding no motion for a new trial has been filed the appellate court may consider the sufficiency of the evidence to support the judgment, in cases tried as provided by Civil Rule 73.01 (without a jury). Civil Rule 79.03. Appellants' first and second points in effect challenge the sufficiency of the evidence to support the judgment and therefore we will determine the propriety of the judgment under the evidence.
On May 7, 1962 the Burtrums owned the land, which was subject to a deed of trust executed by the Burtrums in favor of Lutie Ellis. On that day Securities Investment Company procured a judgment for $197,088.56 against the Burtrums. Execution issued on the judgment, the sheriff levied on the land in question on May 8, 1962, gave notice of sale and on August 28, 1962 sold the property at public sale to the highest bidder, Harry Glassburner, for $2,100. On September 14, 1962 the sheriff executed and delivered a sheriff's deed to the Glassburners, who recorded the deed the same day. Before the execution sale Glassburner checked the records in the recorder's office and learned that title to the property was in the name of Joe Burtrum and wife and that there was a mortgage on the property.
Meanwhile, on July 21, 1962 the trustee under the deed of trust from the Burtrums to Lutie Ellis, having previously given notice of the time and place of sale by publication in a newspaper, conducted a foreclosure sale of this same property. Bobby Joe Loyd bought in the property for $3,525. Bobby Joe Loyd was a straw party, acting for and on behalf of Joe Burtrum, Loyd's employer. Burtrum asked Loyd to go to the sale and bid the property in for him; brought Loyd to the sale and provided the money which was paid to the sheriff. Bobby Joe Loyd had no money and no intention of buying the property for himself. Loyd disclaimed any personal interest in the property and did not pay for and did not receive the deed to the property. On July 30, 1962 the trustee executed a trustee's deed naming Bobby Joe Loyd as grantee. This deed was never delivered to Bobby Joe Loyd, but was delivered to Joe Burtrum 'for Bobby Joe Loyd' when Burtrum came to the trustee's office and picked up the trustee's deed, abstract, note, deed of trust and other papers relating to the title. At that time Burtrum paid the trustee the purchase price. Bobby Joe Loyd was not present. Thereafter Burtrum caused Bobby Joe Loyd and his wife to execute a quitclaim deed to the Burtrums, and on December 3, 1962, five minutes after the trustee's deed to Bobby Joe Loyd was recorded, the quitclaim deed from Bobby Joe Loyd to the Burtrums was recorded.
Three months after the foreclosure sale Glassburner learned that Burtrum...
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...rule, notwithstanding the fact that no motion for new trial was filed in the circuit court. Rules 73.01(d) and 79.03; Glassburner v. Burtrum, Mo., 418 S.W.2d 119, 121(4). The itemized statement of account attached to and made a part of plaintiff's original petition, and subsequently by refe......
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...; and State ex rel. Morton v. Cave, 220 S.W.2d 45, 49 (Mo. banc 1949). The best reiteration is found in Glassburner v. Burtrum , 418 S.W.2d 119 (Mo.1967) :It is a rule of equity, as well as in actions at law, that the filing of a motion for a new trial is a mandatory prerequisite in order t......
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...for review in an appropriate and timely after-trial motion, even in a court-tried case. Rule 79.03, V.A.M.R.; Glassburner v. Burtrum, Mo., 418 S.W.2d 119, 121(3); Adams v. Richardson, Mo., 337 S.W.2d 911, 915(1); Mueller v. Mueller, Mo., 318 S.W.2d 365, 370(9); In re J.L.L., Mo.App.,402 S.W......
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