Rose v. Township Board of Combs Tp.

• Citation: 63 S.W. 698,163 Mo. 396
• Parties: ROSE et al. v. TOWNSHIP BOARD OF COMBS TP. et al.
• Decision Date: 11 June 1901
• Court: United States State Supreme Court of Missouri

63 S.W. 698

163 Mo. 396

ROSE et al. v. TOWNSHIP BOARD OF COMBS TP. et al.

Supreme Court of Missouri, Division No. 2.

June 11, 1901.

FINAL JUDGMENT — APPEAL — NEW TRIAL — RECORD.

1. The judgment dissolving a temporary injunction restraining a township board from opening a road recited that the plaintiffs were not entitled to the relief prayed for, that the injunction be dissolved, and that the defendants recover of plaintiffs their costs, and have execution therefor. Held, that the judgment was not a final one, and hence no appeal lay therefrom.

2. Where, on appeal, the record recites that a motion for a new trial was filed and overruled, and the bill of exceptions recites the same fact, but the motion itself is not in evidence, nor copied into the transcript, and the bill of exceptions contains no direction to the clerk to copy the same, the motion is not sufficiently presented for consideration.

Appeal from circuit court, Carroll county; W. W. Rucker, Judge.

Suit by John A. Rose and others against the township board of Combs township and others. From a judgment in favor of defendants, complainants appeal. Appeal dismissed.

J. B. Hale, Jas. F. Graham, and Virgil Conkling, for appellants. Lozier & Morris, for respondents.

SHERWOOD, J.

Plaintiffs sought and obtained a temporary injunction to restrain defendants, among whom were the township board aforesaid (which board had ordered a certain road to be opened), from opening such road. On coming in of their answer, defendants moved to dissolve the temporary injunction, which motion was granted, and plaintiffs have appealed to this court.

Omitting caption, the judgment, so far as necessary to quote it, is the following: "That the plaintiffs are not entitled to the relief prayed for; that the injunction formerly granted in this cause to prevent the defendants, his [sic] servants and agents, from opening a public road, etc., be, and the same is hereby, dissolved; and that the defendants recover of the plaintiffs their costs and charges in this behalf expended, and thereof have execution." This is not a final judgment, and no appeal lies therefrom. Tanner v. Irwin, 1 Mo. 65; Johnson v. Board, 65 Mo. 47; Witthaus v. Bank, 18 Mo. App. 181; Richards v. Johnson, 34 Mo. App. 83. But, even if there had been a final judgment in this cause, it is not seen how this would better plaintiffs, because, although the record proper recites that the motion for a new trial was filed and overruled, and although the...