Perr v. Perr
| Decision Date | 21 February 1950 |
| Docket Number | Nos. 27678,27742,s. 27678 |
| Parties | PERR v. PERR. |
| Court | Missouri Court of Appeals |
R. P. Smith, and Strom & Spradling, all of Cape Girardeau, for appellant.
J. Grant Frye, of Cape Girardeau, for respondent.
BENNICK, Commissioner.
This is a proceeding involving the modification of a divorce decree as respects the custody of a minor child.
The divorce action was brought by the wife, Golda M. Perr, against her husband Eberhardt Perr, and resulted in the entry of a decree in plaintiff's favor with a provision awarding plaintiff general custody of the parties' son, James Edward Perr, subject to defendant's right to visit the child and have the child visit him 'at all convenient and proper times'. The child was approximately thirteen months of age at the time of the entry of the decree.
Such indefinite provision respecting defendant's right of visitation did not work out satisfactorily, and eventually defendant filed a motion to modify the decree, which the court sustained, and thereupon entered an order modifying the decree so as to provide, among other things, that defendant should have the custody of the child for nine months each year from September 1st to May 31st inclusive, with plaintiff to have custody for the remaining three months, or from June 1st to August 31st inclusive.
Plaintiff appealed from the order modifying the decree; and upon the submission of the case in this court we reversed the order and remanded the cause for further proceedings not inconsistent with the views expressed in our opinion, which is reported as Perr v. Perr, Mo.App., 205 S.W.2d 909. Such views were that the child's general custody should be left with plaintiff, but that defendant's motion to modify should be none the less sustained and the provisions of the original decree be modified so as to fix and define defendant's visitation privileges specifically and beyond room for doubt or controversy. The reasons impelling us to reach such conclusion are fully set out in our former opinion.
The effect of our decision was to reinstate defendant's motion to modify as a pending motion; and when our mandate reached the lower court, the matter was heard on defendant's motion along with certain motions which had been meanwhile filed by plaintiff.
On October 22, 1948, the court entered an order that the decree be modified so as to provide, among other things, that plaintiff should have custody of the child during the entire school year subject to defendant's right of possession during alternate week-ends, and that during summer vacations defendant should have custody subject to plaintiff's right of possession on alternate week-ends.
On October 29, 1948, plaintiff filed her motion for a new trial, which was thereafter argued and submitted, and then overruled on November 22, 1948.
On December 10, 1948, plaintiff filed a motion asking the court to set aside its order of November 22d overruling her motion for a new trial upon the ground that she had received no notice of the entry of such order until December 4th, which was after the expiration of the time for giving notice of appeal. She advised the court that she desired to appeal from the modification of the decree by which she considered herself aggrieved, and that her purpose in asking that her motion for a new trial be reinstated was so that upon the reentry of the order overruling it she might take her appeal without applying for a special order from this court.
On the same day, that is, on December 10th, the court sustained plaintiff's motion; set aside its previous order of November 22d; and reinstated the motion for a new trial, which it again overruled on December 17, 1948. Plaintiff immediately gave notice of appeal; and by subsequent steps has undertaken to have the case transferred to this court for a review of the order modifying the decree.
There is no doubt that the order modifying the decree was an appealable order, and defendant has not challenged plaintiff's right to be heard in this court upon the propriety of the order as entered below. But even in the absence of a challenge from defendant, it is none the less our duty, on our own account, to examine into the question of our jurisdiction, or, to be precise, into the question of whether the appellant has taken the necessary procedural steps to invoke our jurisdiction and authorize us to entertain the appeal on its merits. No matter how greatly disposed we may be to give a liberal construction to statutes and rules affecting appellate practice and procedure, we may not consciously close our eyes to a record which shows that our jurisdiction has not been properly invoked; and whenever it appears that the necessary steps have not been taken to make an appeal effective, we have no recourse but to say so.
It is now settled law that the vital step for taking an appeal is the timely filing of a notice of appeal, which is referred to as being jurisdictional in the sense of being the one procedural step outlined by statute which must be literally complied with if the appeal is to be 'effective'. Laws Mo.1943, p. 390, sec. 129, Mo.R.S.A. sec. 847.129; Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657.
The question here is whether the notice of appeal was filed not later than ten days after the order appealed from became final.
Plaintiff's motion for a new trial was timely, having been filed within ten days after the entry of the order complained of, and the order therefore became final and appealable upon...
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R---, In Interest of, 8015
...3 in a number of criminal cases, 4 and (as we particularly point out) in cases involving the custody of minor children. Perr v. Perr, Mo.App., 227 S.W.2d 490, 492(4); Franklin v. Franklin, Mo.App., 344 S.W.2d 282. Our ear is attuned sympathetically to the stirring plea of the father's prese......
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Heard v. Frye's Estate
...a liberal construction to statutes and rules pertaining to appellate procedure. State v. Robbins, Mo., 269 S.W.2d 27, 29; Perr v. Perr, Mo.App., 227 S.W.2d 490, 492(3); Krummel v. Hintz, Mo.App., 222 S.W.2d 574, 576(3). To the same effect, see State v. Parker, Mo., 310 S.W.2d 923, 924(2); S......
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Hance v. Johnson, Stephens & Shinkle Shoe Co., 7642
...a liberal construction to statutes and rules pertaining to appellate procedure. State v. Robbins, Mo., 269 S.W.2d 27, 29; Perr v. Perr, Mo.App., 227 S.W.2d 490, 492(3); Krummel v. Hintz, Mo.App., 222 S.W.2d 574, However, we have, ex gratia, examined the transcript carefully that our disposi......
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State v. Robbins
...660(4, 5); 5); Starr v. Mitchell, Mo., 237 S.W.2d 123, 124-125(2, 3); Hynes v. Risch, Mo.App., 243 S.W.2d 116, 117(1, 2); Perr v. Perr, Mo.App., 227 S.W.2d 490, 492(4)]. '* * * (I)f the record shows that the notice of appeal was in fact not filed within such time as to have made the appeal ......