Polizos v. Furman

• Decision Date: 03 May 1938
• Docket Number: No. 24496.,24496.
• Citation: 116 S.W.2d 151
• Parties: POLIZOS v. FURMAN.
• Court: Missouri Court of Appeals

116 S.W.2d 151

POLIZOS v. FURMAN.

No. 24496.

St. Louis Court of Appeals. Missouri.

May 3, 1938.

Appeal from St. Louis Circuit Court; Arthur H. Bader, Judge.

"Not to be published in State Reports."

Action by Stamatia Polizos against E. H. Furman for personal injuries allegedly sustained in an automobile accident. Judgment for defendant, and plaintiff appeals.

Appeal dismissed.

Russell Horsefield, of St. Louis, for appellant.

Morton K. Lange and Wilbur C. Schwartz, both of St. Louis, for respondent.

BECKER, Judge.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff as the result of having been struck by an automobile owned and operated by defendant.

The case was tried to a jury and a verdict returned in favor of the defendant. Plaintiff thereupon filed a motion for a new trial, which was overruled, and the plaintiff then filed a "motion to set aside the court's order denying a new trial," which motion was sustained and thereafter, plaintiff's motion for new trial having again been heard and submitted, the court overruled the same, and plaintiff appealed.

The defendant, respondent here, raises the point that plaintiff's affidavit for appeal shows that her appeal was taken from an order of the circuit court which is not appealable, and that consequently this court is without jurisdiction in this case. The point is well taken.

Omitting the formal caption, the affidavit for appeal filed in this case for plaintiff below reads as follows:

"Russell J. Horsefield, being first duly sworn, makes oath and says that he is the agent and attorney for Stamatia Polizos, plaintiff in the above cause, and is duly authorized to make, and does make this affidavit as such agent and attorney of, and in behalf of said plaintiff, and that the appeal prayed for herein by such plaintiff is not made for vexation or delay, but because the affiant believes that the plaintiff is aggrieved by the judgment and decision of the court in overruling her motion for a new trial in the above entitled cause.

                                "Russell J. Horsefield
                                "Attorney for Plaintiff."
                

The right of appeal is purely statutory, and, when challenged, appellant must be able to point to the statute allowing the same. It has been repeatedly pointed out that section 1018, Rev.St. of Mo.1929, Mo.St.Ann. § 1018, p. 1286, providing for appeals, does not provide for an appeal from an order overruling a motion for new trial or a motion in arrest of judgment, though that section does provide for an appeal where the order is one sustaining the motion for new trial or motion in arrest of judgment. Here appellant did not appeal from the final judgment in the case, but took her appeal specifically "from the judgment and decision of the court in overruling her motion for a new trial," from which an appeal does not lie. Bonfils v. Martin's Food Service Co., 299 Mo.Sup. 500, 253 S.W. 982, 983; Lowe v. Frede, 258 Mo.Sup. 208, 167 S.W. 443.

The reason for allowing an appeal from an order granting a motion for new trial or in arrest of judgment and denying it in any case where like motions are...