Seavy v. Silvers.

• Decision Date: 27 June 1927
• Docket Number: No. 15984.,15984.
• Citation: 296 S.W. 479
• Parties: SEAVY v. SILVERS
• Court: Missouri Court of Appeals

296 S.W. 479

SEAVY v. SILVERS

No. 15984.

Kansas City Court of Appeals, Missouri.

June 27, 1927.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

"Not to be officially reported."

Action by Betty Turpin Seavy against T. W. Silvers. Judgment for defendant, and plaintiff appeals. Appeal dismissed.

George L. Davis, of Kansas City, for appellant.

James H. Harkless and E. B. & John A. Silvers, all of Kansas City, for respondent.

BLAND, J.

This is an appeal from the action of the court in sustaining a demurrer to plaintiff's petition. The application and affidavit for appeal reads as follows:

"George L. Davis of lawful age, attorney for plaintiff, makes application and motion for appeal from the judgment of the court sustaining defendant's demurrer to plaintiff's petition, and being duly sworn makes oath and states: That the appeal of plaintiff herein prayed for in the above-entitled cause is not made for vexation and delay but because plaintiff and afliant, attorney for plaintiff, believe that plaintiff, the appellant herein, is aggrieved by the judgment and decision of the court.

                                                    "George L. Davis
                

"Subscribed and sworn to before me this 28th day of December, 1926. Rua B. Goldon, Notary Public in and for Jackson County, State of Missouri."

Respondent has filed a motion to dismiss the appeal, which we think should be sustained. The application for appeal shows that it was an appeal from the judgment of the court sustaining defendant's demurrer to plaintiff's petition, and it is well settled that an appeal will not lie from a judgment overruling or sustaining a demurrer because such is not a final judgment. Plattsburg v. Allen, 84 Mo. App. 432; Rodgers v. Kallmeyer, 104 Mo. App. 137, 78 S. W. 334. The record discloses that the following judgment was rendered by the trial court on December 30, 1926:

"Now on this 30th day of Dec. 1926, the same being the seventeenth judicial day of the regular Oct. 1926, term of this court, the above cause standing on demurrer to plaintiff's second amended petition coming on for final determination the same is taken up by the court and the court having examined said petition and briefs filed by the plaintiff and defendant and having fully considered same doth therefore sustain said demurrer; and the plaintiff having elected to stand on her petition as amended, and it further appearing that demurrer has been sustained to three successive petitions it is therefore considered and adjudged and ordered by the court that judgment be and is in favor of the defendant; that plaintiff take nothing herein by her second amended petition and that defendant have and of plaintiff his costs and that execution issue therefor."

Immediately after thin judgment appears the following:

"Comes now attorney for plaintiff and files application and affidavit for appeal and it appearing to the court that the said affidavit and application is in all things in accordance with law...