Swager v. Monkem Co., 8947
| Decision Date | 11 November 1970 |
| Docket Number | No. 8947,8947 |
| Citation | 460 S.W.2d 291 |
| Parties | Harvey Taylor SWAGER, Plaintiff, v. MONKEM COMPANY, Inc., Employer, Mid-Continent Casualty Company, Insurer, Defendants-Appellants, and Sunflower Leasing Company, Inc., Employer, Insurance Company of North America, Insurer, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Edward G. Farmer, Jr., Joplin, for defendants-appellants.
John R. Martin, Joplin, for defendants-respondents.
In this workmen's compensation case, Monkem Company and its insurer appeal from the Industrial Commission's finding that they are solely liable for an award of benefits to Harvey Swager, the plaintiff, in the amount of $14,584.55. It has been stipulated that Mr. Swager was injured in an accident arising out of and in the course of his employment as an over-the-road truck driver, and that the proceeding is governed by the Missouri Workmen's Compensation Act, Chapter 287, R.S.Mo. (1969), V. A.M.S. 1 On this appeal, Monkem and its insurer contend (a) that Sunflower and its insurer should have been held solely liable for the award, or (b) that Monkem and Sunflower and their respective insurers should have been held jointly liable under that section of the Act, § 287.130, which provides that '(i)f the injury * * * occurs while the employee is in the joint service of two or more employers, their liability shall be joint and several.'
At the outset, we are met with and must consider the respondents' motion to dismiss the appeal. Notice of appeal was filed on July 8, 1969. On October 6, 1969, the trial court granted an extension of time in which to file the transcript on appeal, but there is no record indication that the appellants complied with Rule 82.19, V.A.M.R., by ordering a transcript in writing from the court reporter within 30 days after filing the notice of appeal and filing a duplicate copy of the order in the case within 15 days thereafter. Moreover, the respondents' motion incorporates a letter written to respondents' counsel by counsel for appellants Monkem and its insurer, in which counsel for Monkem states that he made no such written request. Relying principally on Stigers v. Harlow, Mo., 419 S.W.2d 41, respondents maintain that the appeal must be dismissed for failure to comply with Rule 82.18, since the transcript was not actually filed until November 17, 1969, 42 days after the expiration of the 90-day period limited by Rule 82.18 for filing transcripts on appeal. Appellants Monkem and its insurer have neither responded to the motion nor invoked the discretion of this ocurt in any manner.
The rules which regulate the timely filing of transcripts on appeal have been gone into and explained on so many occasions 2 that it seems scarcely necessary to restate the substance and intent of Rules 82.18 and 82.19 at this point. In Stigers v. Harlow, supra, 419 S.W.2d at 42, our Supreme Court explicitly ruled that although the trial court has authority under Rule 82.19 to extend the time for filing a transcript on appeal beyond the 90-day period limited by Rule 82.18, the September, 1962, amendment to Rule 82.19 3 constitutes a limitation on that authority, and if the transcript is not ordered in writing within the time and in the manner prescribed by Rule 82.19, the trial court cannot order the time extended. In addition, the record on appeal must show affirmatively that Rule 82.19 has been fully complied with. Stigers v. Harlow, supra, 419 S.W.2d at 42(1, 2). Appellate courts still have the discretionary authority to permit a transcript to be filed out of time, whether or not the transcript was ordered in writing, Rule 83.26; Jackson v. Haley, Mo., 432 S.W.2d 281, 282(1); and see generally Clader v. City of Neosho, supra, 354 Mo. at 1191--1192, 193 S.W.2d at 621--622(1--4) (5--7), but the discretion of this court has not been addressed in any manner, and we cannot confidently say that the respondents were not prejudiced by the appellants' delay in filing the transcript. In these circumstances, the appeal must be dismissed. In re E_ _, s...
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State ex rel. Philipp Transit Lines, Inc. v. Public Service Commission, KCD
...its discretionary authority to grant the request of the appellants for the transcript to be filed out of time. Swager v. Monkem Company, Inc., 460 S.W.2d 291 (Mo.App.1970). However, what is being said concerning the necessity of following the rules is meant to once again call upon the bar t......
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Donnell v. Vigus Quarries, Inc.
...the trial court has no authority to make such extension, * * *.' Stigers v. Harlow, Mo., 419 S.W.2d 41, 42; Swager v. Monkem Co., Mo.App., 460 S.W.2d 291, 292(1). We pass on to the filing of briefs and motions. Plaintiffs applied for and received an extension of 10 days to file their brief.......