Niemann v. Carps, Inc., 36660
| Decision Date | 03 August 1976 |
| Docket Number | No. 36660,36660 |
| Citation | 541 S.W.2d 712 |
| Parties | Thomas J. NIEMANN, Plaintiff-Appellant, v. CARPS, INC., et al., Defendants-Respondents. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
John J. Cole, Joseph S. Von Kaenel, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for plaintiff-appellant.
Louis B. Susman, Burton H. Shostak, Joseph Chused, Fred E. Arnold, Kortenhof & Ely, Greensfelder, Hemker, Wiese, Gale & Chappelow, Ralph C. Kleinschmidt, St. Louis, for defendants-respondents.
Plaintiff, a general creditor of defendant, Carps, Inc., brought an equitable action seeking the appointment of a receiver for defendant, Carps, Inc., an injunction prohibiting payment or disbursement of the funds and assets of Carps, Inc., and an accounting of the funds and assets of Carps, Inc. The trial court dissolved a temporary restraining order that had been issued at the time suit was filed and sustained defendants' motion to dismiss the petition, without prejudice.
We find plaintiff did not file a timely notice of appeal, and thus we do not have jurisdiction. Perryman v. Perryman, 507 S.W.2d 671 (Mo.App.1974).
Upon filing of the petition, August 27, 1974, the trial court issued a temporary restraining order that defendants refrain from paying or disbursing the funds or other assets of defendant, Carps, Inc. On September 10, 1974, the trial court dissolved the temporary restraining order and sustained defendants' motion to dismiss the petition. Thereafter between the dates of September 18, 1974, and September 26, 1974, various defendants filed separate motions for assessment of damages on the injunction bond which had been filed on issuance of the restraining order.
On September 20, 1974, plaintiff filed 'Motions to Vacate and Set Aside Order of Dismissal, for Leave to File Amended Petition and for Rehearing and Reconsideration.' On October 10, 1974, the trial court overruled plaintiff's motions. On October 16, 1974, plaintiff filed 'Second Motions to Vacate and Set Aside Order of Dismissal, for Leave to File Amended Petition and for Rehearing and Reconsideration.' On November 8, 1974, plaintiff filed a notice of appeal from the order of dismissal entered on September 10; the notice recited that plaintiff's motion to vacate the order had been overruled on October 9, 1974. (The transcript shows the order to have been made on October 10.) Finally, on June 16, 1975, the trial court overruled plaintiff's second motion to vacate, noting the 'Court does not feel there is any provision in the Rules for such Motion.'
Three issues surround the jurisdictional question in this case: (1) Was the judgment of September 10, dissolving the temporary restraining order and dismissing plaintiff's petition, a final order for purposes of appeal? (2) Did the filing of plaintiff's second motion to vacate postpone the finality of the September 10 dismissal order? (3) Should this court hear plaintiff's appeal pursuant to Rule 81.07(a)?
Plaintiff contends that the action of the court on September 10, 1974, was not an appealable order because at the time the court overruled its motions to vacate and set aside the order of dismissal on October 10, 1974, the court had pending before it motions by the defendants for assessment of damages on the injunction bond. This precise issue was thoroughly discussed and rules adversely to plaintiff's contention recently in J and P Trust v. Continental Plants Corp., 541 S.W.2d 22, (Mo.App.St.L.District 1976). The court there concluded that the dissolution of the restraining...
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Hagen v. Bank of Piedmont
...367 S.W.2d 243, 246-247 (Mo.App.1963). See also Wilson v. City of St. Robert, 714 S.W.2d 738, 739 (Mo.App.1986); Niemann v. Carps, Inc., 541 S.W.2d 712, 714 (Mo.App.1976); J and P Trust v. Continental Plants Corp., 541 S.W.2d 22, 25 n. 1 Some cases have denied appeals where a temporary rest......
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Oasis Car Wash, Inc. v. First North County Bank, s. 36763 and 38524
...are independent actions. J and P Trust v. Continental Plants Corp., 541 S.W.2d 22, 26(7) (Mo.App.1976); see also, Niemann v. Carps, Inc., 541 S.W.2d 712, 714 (Mo.App.1976). As such, a timely appeal may be taken from an order overruling a motion to assess damages on an injunction bond. See J......
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Wilson v. City of St. Robert
...case appears to be a temporary injunction. The order dissolving that injunction is therefore final and appealable. Niemann v. Carps, Inc., 541 S.W.2d 712, 714 (Mo.App.1976); Perseverance Common School District No. 90 v. Honey, 367 S.W.2d 243, 246 (Mo.App.1963). The record filed is minimal t......
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State ex rel., Weisman v. Edwards, 46413
...was merit in Bluestone's claim; nor did it allege that the delay was not due to Bluestone's culpable negligence. Niemann v. Carps, Inc., 541 S.W.2d 712, 714 (Mo.App.1976). Thus, the defendant-judge could not treat Bluestone's notice of appeal as a motion under Rule Accordingly, we make our ......