Kattering v. Franz, 41741
| Decision Date | 13 June 1950 |
| Docket Number | No. 1,No. 41741,41741,1 |
| Citation | 360 Mo. 854,231 S.W.2d 148 |
| Parties | KATTERING v. FRANZ |
| Court | Missouri Supreme Court |
Green & Green, Will H. D. Green, H. D. Green, all of West Plains, for appellant.
Miller & Fairman, J. Weston Miller, M. J. McQueen, all of Springfield, for respondent.
Action for $15,000 damages for personal injuries. Verdict was for defendant and plaintiff has attempted to appeal from the judgment entered.
Defendant has filed a motion to dismiss the appeal which we think must be sustained. The judgment in this case was entered March 31, 1949. A motion for new trial was filed on April 5, 1949 which was overruled, by operation of Section 847.118, Mo.R.S.A., 90 days thereafter. It appears that on July 11, 1949, the Clerk of the Circuit Court of Ozark County received (by mail) a notice of appeal which he marked filed but did nothing further because no docket fee was deposited as required by Section 847.129, Mo.R.S.A. On September 25, 1949, plaintiff obtained an order in the Circuit Court of Ozark County extending the time for filing transcript for a period of 90 days from said date; and, on October 8, 1949, he deposited the docket fee of $10 with the clerk. A copy of the notice of appeal was then sent to the clerk of this Court, with the docket fee, and to defendant's attorney.
One of the purposes of the 1943 Code of Civil Procedure was to speed up litigation. Sec. 847.2, Mo.R.S.A. It was particularly intended to eliminate delay in the period after judgment in the trial court. That was the reason for abolishing writs of error in civil cases, Sec. 847.125, Mo.R.S.A., fixing limited periods for filing and acting on motions for new trial, Sec's. 847.116, 847.118 and 847.119, Mo.R.S.A., and for taking appeals. Sec. 847.129, Mo.R.S.A. Likewise, Sec. 847.137, Mo.R.S.A. provided for the transcript of appeal to be filed with the appellate court within 90 days from the filing of the notice of appeal. While Sec. 847.138 authorized extension of this time, we have limited this by Rule 3.26, to a total period of six months, for the purpose of requiring prompt action by the appellant. While liberal discretion is given the courts to extend time for many acts in the interest of justice, there are some after judgment time requirements as to which there is no authority to act. Courts 'may not enlarge the period for filing a motion for or granting a new trial * * * or taking an appeal.' Sec. 847.6, Mo.R.S.A. As a safeguard (of which plaintiff herein did not attempt to avail himself) authority is given the appellate courts (upon proper showing) to grant a special order for an appeal within six months after final judgment. Sec. 847.130, Mo.R.S.A. One cause of delay and congestion of appellate dockets under the old Code was that appeals would be allowed by trial courts under repealed Section 1187, R.S.1939, without payment of docket fees. See Reinauer v. Wabash Railroad Co., 210 Mo. 109, 108 S.W. 531. These cases could not be filed in the appellate courts until the docket fee was paid and it often became necessary for the respondent to pay the docket fee to get a dismissal. When the respondent did not do so, many cases remained suspended for years between the trial court and the appellate courts. This condition made it impossible to know the true condition of appellate court dockets as such cases might come in at any time, and it was unfair to the winning party to thus prevent the final determination of the case. This condition also made it very difficult for appellate courts to keep their dockets current.
Therefore, the provision in the new Code concerning this requirement was more specifically stated than in old Section 1187, as follows: 'The docket fee of $10.00 in the appellate court shall be deposited with the clerk of the trial court at the time of filing the notice of appeal.' See Sec. 847.129, Mo.R.S.A. In order to make the meaning of this absolutely clear, we adopted the two following rules:
If these rules are not followed, the result would be to create again the same conditions which our new Code sought to remedy. Parties could determine for themselves how long they would take to decide whether they wanted to appeal and when they should commence to prepare the transcript on appeal. Thus the provisions of Sections 129 and 137 of the Code would be nullified and appellate courts would be without information as to the actual condition of their dockets. We cannot...
To continue reading
Request your trial
-
Hood v. M. F. A. Mut. Ins. Co.
...Mo.App., 340 S.W.2d 180, 183(1, 2)] and for the filing of a notice of appeal. V.A.M.R. Rules 82.04 and 82.07; Kattering v. Franz, 360 Mo. 854, 856, 231 S.W.2d 148, 149; Heard v. Frye, Mo.App., 319 S.W.2d 685, 686(2); Hance v. Johnson, Stephens & Shinkle Shoe Co., Mo.App., 306 S.W.2d 80, 82(......
-
R---, In Interest of, 8015
...to extend the time for the doing of many acts, they cannot enlarge the period within which an appeal may be taken. Kattering v. Franz, 360 Mo. 854, 856, 231 S.W.2d 148, 149; Hance v. Johnson, Stephens & Shinkle Shoe Co., Mo.App., 306 S.W.2d 80, 82(2); Bank of Thayer v. Kuebler, 240 Mo.App. ......
-
Herrick Motor Co. v. Fischer Oldsmobile Co.
...and the timely filing of plaintiff's notice of appeal on January 16, accompanied by payment of the docket fee (Kattering v. Franz, 360 Mo. 854, 231 S.W.2d 148(2)), was the only requirement necessary to invoke appellate jurisdiction and make the appeal 'effective.' Rule 82.04; Whealen v. St.......
-
Moore ex rel. Moore v. Bi-State Dev. Agency
...Missouri Supreme Court has held that there is no valid filing of a notice of appeal until the docket fee is paid. Kattering v. Franz, 360 Mo. 854, 231 S.W.2d 148, 150 (1950).5 In so the Court relied on Section 847.129 Mo. R.S.A., a predecessor to Section 512.050 RSMo. (2000), and Rule 3.28 ......