Lieffring v. Birt

• Decision Date: 03 March 1947
• Docket Number: 20796
• Citation: 200 S.W.2d 606
• Parties: LIEFFRING v. BIRT
• Court: Kansas Court of Appeals

200 S.W.2d 606

LIEFFRING v. BIRT

No. 20796

Court of Appeals of Missouri, Kansas City

March 3, 1947

'Not to be published in State Reports.'

Alcid Bowers and Sterling P. Reynolds, both of St. Joseph, for appellant.

John J Robison, of Maysville, for respondent.

OPINION

DEW

Appellant brought this action to recover actual and punitive damages for alleged false arrest and imprisonment, alleged to have been sustained in 1938. The verdict of the jury was in favor of the defendant, and was rendered January 22, 1946. No judgment was entered thereon on that date, or at any other time, so far as the transcript shows, as required by Section 116 of the Code of Civil Procedure, Laws of Missouri, 1943 pp. 353-397, Mo.R.S.A. § 847.116. On January 28, 1946 plaintiff filed his motion to set aside the verdict and for a new trial. The motion made no reference to any judgment rendered in the cause and did not ask that any judgment be set aside. On April 15, 1946, the court overruled said motion and on the same day plaintiff gave notice of appeal 'from the verdict, judgments, decisions and decrees entered in this action on the 22nd day of January, 1946 and on the 15th day of April, 1946'. The record is approved by the trial judge and certified as a true and correct copy of the record by counsel for both parties.

Assuming that the notice sufficiently specified the matters appealed from, which it is unnecessary here to determine, the only one mentioned which would be appealable was the judgment, if any, in the cause. Section 126 of the Code. An order overruling a motion for a new trial is not appealable under the present Code, nor was it under the preceding Code of Civil Procedure. Park v. Park, Mo.App., 190 S.W.2d 285. This leaves only the judgment, if any made in the cause, the subject of the appeal under the notice given.

As stated, there is no judgment shown of record, and we cannot assume that one was made, nor if so, what it was. The Code requires the judgment appealed from to be shown in the transcript. Secs. 135, 136. The same is required by Supreme Court Rule 1.04. It was said by the Supreme Court of Missouri in Evans v. City of St. Louis, 198 S.W.2d 9:

'* * * an examination of the record presented for review discloses that there is no copy of any judgment therein. The transcript on appeal should include a copy of the judgment appealed from. A 'full transcript of the record in the cause' clearly includes it. See sec. 135, p. 393, Laws 1943, Mo.R.S.A. § 847.135. It is also required when the parties agree to a statement of the case under Sec. 136, Id., said section providing in part: '* * * The statement shall include a copy of the judgment or order appealed from * * *.' Supreme Court Rule 1.04 is to like effect. A dismissal of the appeal under Supreme Court Rule 1.15 is directed in the circumstances of the instant case for failure to comply with Rule 1.04. (citations)'.

See, also, Bales v. Jefferson City Lines, Inc., Mo.App., 192 S.W.2d 27.

It was recently said by the Supreme Court in Weller v. Hayes Truck Lines, Mo.Sup., 197 S.W.2d 657, 659:

'Appellate jurisdiction is created by statute. Accordingly, unless there is a judgment or order in a case from which an appeal is permitted by statute, appellate jurisdiction to review is denied us'.

Although respondent here has raised no point as to the omission of the judgment, if any was ever made in the case, this court, in such a case, 'must examine the record as to its jurisdiction whether such question is raised by the parties or not'. Thurman v. Smith, 327 Mo. 894, 897, 898, 39 S.W.2d 336, 337; Battaglia v. State Social Security Commission of Missouri, Mo.App. 179 S.W.2d 640.

'The situation, therefore, is that if the circuit court of Cape Girardeau county did not enter a judgment on the verdict of the jury, then there is no final judgment in the case and the attempted appeal is a nullity. Appeals do not lie except from final judgments. If, on the other hand, a final judgment was in fact entered of record on the verdict, the appellant has failed to file a certified copy of same in this court. In either event the appeal should be dismissed. It is so ordered.' Thurman v. Smith, supra, 327 Mo. at page 898, 39 S.W.2d at page 338.

In view of the condition of the record before us and the law applicable thereto, this appeal should be dismissed. It is so ordered.

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