Lowe v. Frede

• Decision Date: 26 May 1914
• Docket Number: No. 16378.,16378.
• Citation: 258 Mo. 208,167 S.W. 443
• Parties: LOWE v. FREDE.
• Court: Missouri Supreme Court

167 S.W. 443

258 Mo. 208

LOWE v. FREDE.

No. 16378.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

1. APPEAL AND ERROR (§ 78)—ORDERS APPEALABLE—STATUTES.

Under Rev. St. 1909, § 2038, authorizing appeals from orders granting a new trial, an appeal does not lie from an order overruling a motion for new trial, but the party against whom a verdict is returned must wait until a final judgment is entered thereon before taking his appeal.

2. APPEAL AND ERROR (§ 129)—ORDERS APPEALABLE—STATUTORY PROVISIONS.

In the absence of an express statute authorizing it, no appeal lies from rulings on motions.

3. APPEAL AND ERROR (§ 837)—RECORD—REVIEW.

The court, on appeal from an order overruling a motion for new trial, will not examine the record to ascertain if a judgment was entered from which an appeal lies.

Appeal from Circuit Court, Atchison County; Wm. C. Ellison, Judge.

Action by Lincoln A. Lowe against John W. Frede. From an order overruling a motion for new trial after a verdict for defendant, plaintiff appealed to the Kansas City Court of Appeals, and it transferred the cause to the Supreme Court. Dismissed.

Suit for personal injuries resulting from assault and battery. This action was transferred to this court by the Kansas City Court of Appeals because the amount in issue exceeds $7,500. The appeal is somewhat unusual. In his printed abstract of the record appellant describes it as follows:

"This is an appeal from the ruling from the circuit court overruling a motion for a new trial. In the court below the defendant obtained a verdict."

A careful inspection of the abstract of the record shows that the cause was tried by a jury in the circuit court of Atchison county, which jury on May 29, 1909, returned into court the following verdict:

                  "We, the jury, find for defendant
                                  "W. H. Wright, Foreman."
                

On said May 29, 1909, the plaintiff filed a motion for new trial, which motion for new trial was continued to the next regular term of the circuit court. On the 2d day of October, 1909, said court having again convened in regular session, the following orders were entered of record:

"Now comes both parties herein, and by their respective attorneys, and by agreement of parties, plaintiff's motion for a new trial coming on to be heard, and the court being now fully advised in the premises, overrules said motion. To the action of the court in overruling plaintiff's motion for a new trial, plaintiff then and there and at the time excepted and still excepts."

"Comes now plaintiff, by his attorneys, and files his affidavit in appeal, and prays an appeal hereof from the ruling of the court on said motion for a new trial to the Kansas City Court of Appeals, at Kansas City, Mo., which appeal is allowed by the court." (The italics are ours.)

H. B. Williams, of Craig, L. J. Miles, of Rockport, and John W. Stokes, of Craig, for appellant. Lee Mullins and L. D. Ramsay, both of Rockport, for respondent.

BROWN, J.

I. The respondent concedes that the appellant's printed abstract is correct, but calls attention to the fact that no appeal lies from an order of the circuit court overruling a motion for new trial.

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