McPike v. St. Louis County Bank
| Decision Date | 19 April 1946 |
| Docket Number | 26970 |
| Citation | 193 S.W.2d 961 |
| Parties | McPIKE v. ST. LOUIS COUNTY BANK |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
George F. Heege, of Clayton, for appellant.
Hay & Flanagan, S.D. Flanagan, and C. Delitala, all of St. Louis for respondent.
HUGHES
We have for consideration respondent's motion to dismiss the appeal of defendant from a judgment of the circuit court in plaintiff's favor after the trial of a damage suit, for the reason, as respondent claims, that the appeal was not taken within the time required by statute.
The steps in the procedure were as follows:
The verdict and judgment were rendered May 15, 1945. On May 24 1945, defendant filed motion for new trial; on September 10 1945, which was 109 days after the date of the filing of the motion for new trial, the trial court made an entry of record overruling defendant's motion for a new trial, and thereafter on September 13, 1945, the defendant filed with the circuit clerk notice of appeal and deposited therewith $ 10 docket fee. Under these facts we are compelled to sustain the motion to dismiss the appeal, and in accordance with Section 141(a) of the Civil Code of Missouri, Laws 1943, p. 396, Mo.R.S.A. § 847.141(a), our opinion should be reduced to writing and filed in the cause.
The judgment in the case was entered on May 15th and the motion for new trial was filed May 24th. The motion for new trial prevented the judgment from becoming final until such motion was disposed of. Rule 3.24 of the Rules of the Supreme Court of Missouri provides as follows:
'For the purpose of ascertaining the time within which an appeal must be taken, a judgment becomes final at the expiration of thirty days after the entry of such judgment, except when a timely motion for new trial is filed, in which event the judgment becomes final at the expiration of ninety days after the filing of such motion or, if such motion is passed on at an earlier date, then at the date of disposition of said motion. * * *.'
It is provided by Section 118 of the Civil Code, Mo.R.S.A. § 847.118, as follows:
'If the motion for new trial is not passed on within 90 days after the motion is filed, it is deemed denied for all purposes.'
And Section 129 of the Civil Code, Mo.R.S.A. § 847.129, provides:
* * *'
In this case the judgment...
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