McPike v. St. Louis County Bank, 26970.

• Decision Date: 19 April 1946
• Docket Number: No. 26970.,26970.
• Citation: 193 S.W.2d 962
• Parties: McPIKE v. ST. LOUIS COUNTY BANK.
• Court: Missouri Court of Appeals

193 S.W.2d 962

McPIKE v. ST. LOUIS COUNTY BANK.

No. 26970.

St. Louis Court of Appeals. Missouri.

April 19, 1946.

Appeal from Circuit Court, St. Louis County; John Witthaus, Judge.

"Not to be reported in State Reports."

Action by May McPike against the St. Louis County Bank. Judgment for plaintiff, and defendant appeals. On motion by defendant for special order permitting the filing of a notice of appeal.

Motion denied.

George F. Heege, of Clayton, for appellant.

Hay & Flanagan, S. D. Flanagan, and C. Delitala, all of St. Louis, for respondent.

HUGHES, Presiding Judge.

We are handing down simultaneously herewith an opinion in this case, 193 S.W. 2d 961, sustaining a motion of the respondent to dismiss the appeal. This is a motion by the defendant seeking a special order under Section 130, Civil Code of Missouri, Laws 1943, p. 391, Mo.R.S.A. § 847.130 permitting the filing of a notice of appeal, and was filed while respondent's motion to dismiss was pending. This motion might well have been taken as an admission by defendant that the notice of appeal as filed was not effective, else there would be no occasion for filing a second notice of appeal. However, we are measuring defendant's position by the application of the statute rather than on technical grounds, and are giving our views on both respondent's motion to dismiss, and now on defendant's motion for a special order.

Section 130 of the Civil Code provides:

"When an appeal is permitted by law from a final judgment in the trial court, but the time prescribed for filing the ordinary notice of appeal with the clerk of the trial court as set forth in section 129 has expired, nevertheless a party seeking reversal of such final judgment may file a notice of appeal in the trial court, within 6 months from the date of such final judgment, if permitted to do so by a special order of the appropriate appellate court. The special order may be allowed by the appellate court, upon motion and notice to adverse parties, and upon a showing by affidavit, or otherwise, that there is merit in appellant's claim for the special order and that the delay was not due to appellant's culpable negligence. * * *"

An appeal being unknown to the common law and purely a statutory right, the litigant must bring himself within the terms of the statute in order to avail himself of the right of appeal. In order that there be at some place an end to litigation, the legislature has wisely provided the time within which a judgment becomes final and the time within which an appeal may be...