Prosser v. Derickson
| Decision Date | 28 September 1999 |
| Citation | 1 S.W.3d 608 |
| Parties | (Mo.App. W.D. 1999) Christopher L. Prosser, Appellant, v. Arthur Derickson, et al., Respondents. WD56824 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Cole County, Hon. Thomas L. Sodergren
Counsel for Appellant: Christopher Prosser, Pro Se
Counsel for Respondent: Dave Williams
Opinion Summary: Christopher Prosser appeals the associate circuit court's dismissal with prejudice of his petition in replevin and/or bailment against corrections officials for unlawfully taking and seizing his property while incarcerated. Prosser seeks to have the associate circuit court's dismissal with prejudice set aside.
Division Three holds: Prosser's claim was for less than $5,000. The associate circuit court's dismissal with prejudice "finally decided the litigation" and thus Prosser was "tried" within section 512.180.1, RSMo. The judge was not sitting in the probate division or assigned to hear the case on the record under procedures applicable before circuit judges. Accordingly, Prosser's sole recourse was to file for a trial de novo in the circuit court. He cannot appeal to the appellate court directly.
Christopher Prosser, an inmate in the custody of the Missouri Department of Corrections, appeals from the Associate Circuit Division of the Circuit Court's dismissal with prejudice of his petition in replevin and/or bailment. Mr. Prosser alleged that corrections officials unlawfully seized and retained property belonging to him. In his appeal, Mr. Prosser seeks to set aside the associate circuit court's dismissal of his petition for replevin and/or bailment. Mr. Prosser's appeal is dismissed.
Although neither party has raised the issue of jurisdiction, this court has a duty to address appellate jurisdiction sua sponte. Hamby v. City of Liberty, 970 S.W.2d 382, 383 (Mo.App.W.D. 1998). The right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists. Farinella v. Croft, 922 S.W.2d 755, 756 (Mo. banc 1996). Section 512.1801 governs appeals from cases tried before associate circuit judges. It grants "any person aggrieved by a judgment in a civil case tried without a jury before an associate circuit judge, other than an associate circuit judge sitting in the probate division or who has been assigned to hear the case on the record under procedures applicable before circuit judges" the right of a trial de novo "in all cases where the petition claims damages not to exceed five thousand dollars." Section 512.180.1. Only where the case does not fit this description may a party appeal directly to the appellate court. Farinella, 922 S.W.2d at 756. Failure to request and pursue the proper remedy may be fatal to a person's right to obtain review. Nicolai v. Faille-Talayna Pizza, Inc., 657 S.W.2d 279, 280 (Mo.App.E.D. 1983). An appeal without statutory sanction confers no authority upon an appellate court except to enter an order dismissing the appeal. Farinella, 922 S.W.2d at 757-58.
Section 512.180.1 requires that the case be "tried without a jury before an associate circuit judge." In this case, Mr. Prosser is appealing from the associate circuit court's dismissal of his action with prejudice. In Nicholson v. Nicholson, 685 S.W.2d 588, 588-89 (Mo.App.E.D. 1985), the Eastern District stated that "a dismissal with prejudice, assuming that all claims are adjudicated and all parties are accounted for, acts as a bar to any further litigation of the claims therein involved." The court concluded since a dismissal with prejudice "finally decides that litigation, it is clearly...
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