Shoush v. Truitt
| Decision Date | 08 January 1951 |
| Docket Number | No. 21461,21461 |
| Citation | 241 Mo.App. 188,235 S.W.2d 859 |
| Parties | SHOUSH v. TRUITT et al. |
| Court | Missouri Court of Appeals |
Roland A. Zeigel, and Jayne & Jayne, all of Kirksville, for appellants.
Lawson Romjue, Macon, Philip J. Fowler, Kirksville, for respondent.
BOUR, Commissioner.
Plaintiff-respondent brought this suit by filing a petition in two counts. Each count purports to state a separate and distinct cause of action against defendants-appellants. In view of the conclusions which we have reached in this case it would serve no useful purpose to state the contents of the pleadings, which are quite lengthy and involved.
The record shows that defendants moved to dismiss both counts of the petition, and filed an answer and counterclaim to the first count. Defendants also filed an answer and counterclaim to the second count of the petition. The motions to dismiss were overruled and the cause proceeded to trial before a jury. At the close of plaintiff's evidence and again at the close of all the evidence, defendants moved for a directed verdict as to both counts. These motions were overruled. On February 1, 1950, the jury returned a verdict for plaintiff on the first count, and assessed his actual damages at $298.18, and punitive damages at $300; and the jury also found for plaintiff on the second count and assessed his damages at $150, the verdict being against defendants on both of their counterclaims. On the same day, February 1, 1950, there was entered of record the following judgment (omitting formal parts): 'It is therefore ordered, adjudged and decreed that the plaintiff have and recover from the defendants the sum of $598.18 on the first count of the petition and the sum of $150.00 on the second count of the petition, in all the sum of $748.18, together with the costs of this action and that execution issue therefor.'
On February 9, 1950, defendants filed (1) a motion for judgment on the first count and for judgment on their counterclaim to the first count; (2) a motion for judgment on the first count in accordance with their motion for a directed verdict; (3) a motion for judgment on the second count and for judgment on their counterclaim to the second count; and in the alternative (4) a motion to set aside and to have the court 'grant a new trial of all the issues joined in said count of said petition * * *'; (5) a motion and to have the court 'grant defendants a new trial of the issues therein * * *.' The motions for a new trial set forth several grounds of alleged error, including the ground that the court erred in refusing to sustain defendants' motions for directed verdict at the close of all the evidence.
On February 28, 1950, the trial court overruled all of the above motions except defendants' alternative motion for a new trial of the issues joined on count one, which was sustained.
Thereafter, and on March 6, 1950, the defendants filed their notice of appeal. Omitting caption and signatures, defendants' notice of appeal is as follows: 'Notice is hereby given that Charles Truitt and Archie Truitt, d/b/a Truitt Brothers Motor Company, defendants above-named, hereby appeal to the Kansas City Court of Appeals of Missouri from the judgment on the first count denying defendants' motion for directed verdict on the first count of plaintiff's petition and on defendants' counterclaim thereto, and from the judgment on the second count of plaintiff's petition and defendants' counterclaim thereto, all as entered in this action on the 28th day of February, 1950 (insofar as the overruling of motions on the first count is concerned) and on the 20th day of January 1950 as regards second count.'
The plaintiff did not appeal from the order granting defendants a new trial on count one.
Defendants contend that plaintiff did not make a submissible case on either count of his petition and, therefore, that the trial court erred in overruling defendants' motions for directed verdict and their after-trial motions for judgment. It appears from the record, however, that we cannot consider these contentions, whether meritorious or not, for the reason that there was no order, judgment or decision of the trial court from which defendants were entitled to appeal.
The notice of appeal refers to judgments entered on January 20, 1950 and February 28, 1950. No judgments were entered on those dates. The only judgment in the case was entered on the date of the verdict, February 1, 1950. Furthermore, no order was entered on January 20, 1950. No doubt the reference to the last-mentioned date was inadvertent. Defendants' motion for a directed verdict at the close of all the evidence was overruled on February 1, 1950. However, all of defendants' after-trial motions for judgment were overruled on February 28, 1950, a date referred to in the notice of appeal. It would seem, therefore, that defendants attempted to appeal from the orders overruling their motions for judgment.
The right of appeal is purely statutory, and where the statutes do not give such right, it does not exist. Tevis v. Foley, 325 Mo. 1050, 30 S.W.2d 68. Section 126, Civil Code, Laws 1943, p. 390, Mo.R.S.A. Sec. 847.126, provides for an appeal 'from any final judgment in the case', and from certain specified interlocutory orders and judgments. But it does not provide for an appeal from an order overruling a motion for judgment in favor of a defendant. Hence the defendants in the present case could not appeal from the orders overruling their after-trial motions for judgment. Section 126 makes no provision for an appeal by defendants under the facts of this record, unless the judgment entered by the trial court on February 1, 1950, was a notice of appeal shows an attempt in good faith to appeal from the judgment entered on February 1, 1950, the question arises whether that judgment was a final judgment in the case.
As stated, the trial court overruled all of defendants' after-trial motions for judgment. But the court sustained defendants' alternative motion for a new trial of the issues joined on count one. In Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333, 8 A.L.R.2d 710, the trial court overruled defendants' motion for judgment in accordance with defendants' motion for a directed verdict made at the close of all the evidence, but defendants' motions for a new trial were sustained. The plaintiff appealed from the orders granting a new trial and defendants appealed from the orders overruling their motions for judgment. In dismissing the defendants' appeals, the Supreme Court said, 219 S.W.2d loc. cit. 335: ...
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