Holland v. Marshall

• Decision Date: 10 December 1915
• Docket Number: No. 1493.,1493.
• Parties: HOLLAND et al. v. MARSHALL et al.
• Court: Missouri Court of Appeals

181 S.W. 124

HOLLAND et al. v. MARSHALL et al.

No. 1493.

Springfield Court of Appeals. Missouri.

December 10, 1915.

Rehearing Denied January 8, 1916.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by James J. Holland and another against W. I. Marshall and others. From the judgment before the disposition of defendants' motion for new trial, plaintiffs appeal. Appeal dismissed.

Stuart L. Clark and Garry H. Yount, both of Van Buren, for appellants. Green & Green, of West Plains, for respondent Gum. L. B. Shuck, of Webb City, S. A. Cunningham, of Eminence, G. S. Sizemore, of Webb City, and Sebree & Orr, of Springfield, for other respondents.

FARRINGTON, J.

Where parties on both sides are dissatisfied with the judgment of the circuit court, and both file motions for a new trial, and the court overrules one of them and grants an appeal thereon, but continues the case from term to term as to the other, is the judgment a final judgment so long as that motion remains undisposed of in the circuit court? If the party whose motion was overruled and who obtained the order granting an appeal goes on and attempts to perfect an appeal, is his appeal premature?

The plaintiffs (appellants) brought this suit in equity, as stockholders of the Birch Tree State Bank, a corporation, for themselves as well as other stockholders similarly situated, against Marshall, Pate, Gum, and Holden, as directors of the corporation, to recover losses due to the alleged mismanagement of its affairs by said directors. The bank was made a party defendant in order that all parties should be before the court and in order that the recovery, if any, might be for the benefit of the bank. It is sufficient for our present purpose to merely state that the circuit court on January 15, 1915, rendered a decree in favor of the plaintiffs as representatives of the bank for a certain amount against defendants Marshall and Pate (president and cashier respectively of the bank), but in favor of defendants Gum and Holden, discharging them. A certified copy of the record entries in the circuit court in the case thereafter shows the following occurrences: That on the day the decree was rendered (January 15, 1915) plaintiffs filed, and the court overruled, a motion for a new trial, and that plaintiffs thereupon filed affidavit for an appeal which appeal was granted to this court; that later (but on the same day) defendants Marshall and Pate filed a motion for a new trial, but that the court continued the cause on said motion until the next term; that on January 19, 1915, in vacation, plaintiffs presented and had approved their appeal bond; that at the May term, 1915, the circuit court continued the cause on defendants' motion for new trial by agreement; and that at the September term, 1915, the court again continued the cause on defendants' motion for new trial. The circuit clerk certifies that said motion is still undisposed of in the circuit court. Meanwhile, plaintiffs undertook to perfect an appeal. On January 20, 1915, they lodged the usual papers in this court. On September 3, 1915, they served what purported to be an abstract and brief on the respondents, the case being set on our docket for October 5, 1915. Respondents did not file briefs. On October 4, 1915, however, respondents filed a motion to dismiss the appeal alleging that it was prematurely taken. Their position is based on the fact that their motion for a new trial remains undisposed of in the circuit court, and they argue that therefore there is no final judgment in the case.

Plaintiffs stand in this court, if at all, on that clause in the statute (section 2038, R. S. 1909) permitting appeals in civil cases which provides that an appeal may be taken "from any final judgment in the case."

It is well settled in this state that a judgment does not become a finality until a motion for a new trial or a motion in arrest of judgment is disposed of. Until a motion for new trial is disposed of there is no final judgment. If a motion for a new trial is filed, the whole matter remains in the breast of the court so long as that motion is pending and carries the whole case over from term to term until the motion is acted on, and until that is done it cannot be said that the cause is finally determined. Walter v. Scofield, 167 Mo. loc. cit. 545, 546, 547, 67 S. W. 276; Riddlesbarger v. McDaniel, 38 Mo. 139; Scott v. Scott, 44 Mo. App. loc. cit. 602, 603; State ex rel. Scott v. Smith, 104 Mo. 419, 16 S. W. 415; Union Brewing Co. v. Ehlhardt, 139 Mo. App. loc. cit. 135, 120 S. W. 1193; Moliter v. Railroad, 180 Mo. App. loc. cit. 94, 168 S. W. 250; Sterling v. Parker-Washington Co., 185 Mo. App. loc. cit. 208, 209, 170 S. W. 1156; Romine v. Hoag (Mo.) 178 S. W. loc. cit. 151.

The statute (section 2090, R. S. 1909) defines "judgment" as "the final determination of the right of the parties in the action." It is held in Wolff v. Vette, 17 Mo. App. 36, that a "final judgment" is one in which the court's jurisdiction has been exhausted as to the matters decided, and that this is the test of a final judgment for the purpose of determining the right of appeal in this state. It is held, also, that but one final judgment can be rendered in any cause. Russell v. Railway Co., 154 Mo. 428, 55 S. W. 454; Baker v. City of St. Louis, 189 Mo. 375, 88 S. W. 74; Seay v. Sanders, 88 Mo. App. 478; August Gast Bank Note & L. Co. v. Fennimore Ass'n, 79 Mo. App. 612. And it is held (though not in a case like this) that under this statute a judgment is not final until the rights of all the parties to the action are finally...