Luethans v. Lahey, 27993
| Decision Date | 20 February 1951 |
| Docket Number | No. 27993,27993 |
| Parties | LUETHANS v. LAHEY. |
| Court | Missouri Court of Appeals |
Francis R. Stout, St. Louis, for appellant.
Vincent M. Flynn, Thomas W. Challis, Jr., St. Louis, for respondent.
WOLFE, Commissioner.
This is an action for damages arising out of personal injuries wherein there was a verdict and judgment for the plaintiff in the sum of $1500. Thereafter the defendant filed a motion to set aside the verdict and judgment and to enter a judgment for the defendant in accordance with the motions for a directed verdict filed by the defendant at the close of plaintiff's case and at the close of all of the evidence. In the alternative the defendant also moved for a new trial. The motion for judgment for the defendant was overruled but the court sustained the motion for a new trial, vacating the verdict and judgment and reinstating the case upon the docket for further proceedings.
The defendant seeks to prosecute this appeal from the order of the court overruling his motion to enter a judgment for the defendant. He has apparently overlooked the fact that the trial court granted his motion for a new trial and that by reason of this there is no judgment against him and he is not aggrieved by any order adverse to him from which an appeal would lie.
We are obliged to determine whether this appeal is properly before us even though, as in this case, the point is not raised by either of the parties. Poston Springfield Brick Co. v. Brockett, Mo.App., 183 S.W.2d 404; Severs v. Williamson, Mo.App., 198 S.W.2d 368.
It has long been held that the right of appeal is purely statutory (Poston Springfield Brick Co. v. Brockett, supra, and cases therein cited), and when we examine Section 126, Civil Code of Missouri, Laws of Missouri 1943, p. 390, Mo.R.S.A. Sec. 847.126, R.S.1949, Sec. 512.020, we find no provision for an appeal from an order overruling a motion for a judgment for the defendant. This court so held in Vendt v. Duenke, Mo.App., 210 S.W.2d 692. See also Long Mercantile Co. v. Saffron, Mo.App., 104 S.W.2d 770.
In the case of Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, 335, 8 A.L.R.2d 710, the Missouri Supreme Court stated:
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Ward v. Lemke
...Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333 (1949); Morris v. Patterson, 549 S.W.2d 613 (Mo.App.1977); Luethans v. Lahey, 237 S.W.2d 209 (Mo.App.1951); Shoush v. Truitt, 235 S.W.2d 859 (Mo.App.1951); Vendt v. Duenke, 210 S.W.2d 692 (Mo.App.1948). Plaintiff's Appeal On their......
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Adair County v. Urban
...plaintiff nor the defendant is adversely affected when the trial court sustains either of their motions for a new trial. Luethans v. Lahey, Mo.App., 237 S.W.2d 209; Long Mercantile Co. v. Saffron, Mo.App., 104 S.W.2d 770; Vendt v. Duenke, Mo.App., 210 S.W.2d 692. So when both the plaintiff ......
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