Hynes v. Risch
| Decision Date | 16 October 1951 |
| Docket Number | No. 28056,28056 |
| Citation | 243 S.W.2d 116 |
| Parties | HYNES et al. v. RISCH et al. |
| Court | Missouri Court of Appeals |
Joseph C. Miller, Melvin Risch, St. Louis, for appellants.
R. Forder Buckley, St. Louis, for respondents.
WOLFE, Commissioner.
This is an action for breach of contract which, upon trial, resulted in a verdict and judgment for the plaintiffs in the sum of $2250. The defendants seek to prosecute an appeal from the judgment.
A statement of the evidence is not necessary since we are confronted with a matter of procedure which leaves us without jurisdiction. The judgment was entered on March 30, 1950, and within proper time a motion for a new trial was filed. This motion for a new trial was overruled on May 1, which was thirty-two days after the judgment. The court made later orders, which are as follows:
'And thereafter on the 2nd day of May, 1950, it appearing to the court that time was granted to file briefs, and that the ruling on the motion for a new trial was made before such time expired, that the order and ruling on said motion entered on May 1st is set aside and said motion is reinstated.
'And thereafter, on the 15th day of May, 1950, defendants' motion for a new trial and directing verdict was overruled.'
On May 23, a notice of appeal was filed.
Section 512.050, R.S.Mo.1949, provides:
If May 15, the date of the last entry, was the day the judgment became final, then the appeal would be within time, but, if the judgment became final on May 1, then the appeal was obviously late since the ten days in which the notice would have to be filed to be effective would have passed. Since the right of appeal is statutory a notice of appeal filed after the time prescribed by the statute leaves us without jurisdiction. As stated in Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657, 660, 'The vital step for perfecting an appeal is the timely filing of a notice of appeal * * *.'
For the purpose of appeal a judgment becomes final thirty days after its entry if no timely motion for a new trial is filed. This time is so set because the trial court may within thirty days after the entry of the judgment order a new trial under Section 510.370, R.S.Mo.1949. When a motion for a new trial is filed the judgment does not become final until the motion is disposed of either by the passing of ninety days when it is deemed denied under Section 510.360, R.S.Mo.1949, or by the court acting upon the motion prior to the expiration of the ninety day period. The above section and Section 510.340, R.S.Mo.1949, as clarified by Supreme Court...
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