Weller v. Hayes Truck Lines, No. 26907.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Bennick
• Citation: 192 S.W.2d 677
• Parties: WELLER v. HAYES TRUCK LINES.
• Docket Number: No. 26907.
• Decision Date: 19 February 1946

192 S.W.2d 677 WELLER
v.
HAYES TRUCK LINES. No. 26907. St. Louis Court of Appeals. Missouri. February 19, 1946. Cause Transferred to Supreme Court on Court's Own Motion March 1, 1946.

[192 S.W.2d 678]

Appeal from St. Louis Circuit Court; F. E. Williams, Judge.

"Not to be reported in State Reports."

Action by Andrew J. Weller against Hayes Truck Lines to recover for damage sustained by plaintiff to defendant's alleged overloading of plaintiff's truck which defendant had hired. Judgment for plaintiff and defendant appeals.

Appeal dismissed.

Franklin E. Reagan, Sievers & Reagan, and B. W. LaTourette, all of St. Louis (David Axelrod and Carl L. Steiner, both of Chicago, Ill., of counsel), for appellant.

Paul J. Kaveney and F. R. Stout, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action in tort for the damages sustained by plaintiff through defendant's alleged overloading of plaintiff's motor truck which plaintiff had contracted to use in transporting a load of machinery from Cleveland, Ohio, to St. Louis, Missouri.

Tried to the court alone without the aid of a jury, a judgment was entered in favor of plaintiff, and against defendant, for the aggregate amount of $2,460.65. Defendant has undertaken to appeal to this court.

It has been repeatedly said that the first duty of an appellate court in any case is to see if it has jurisdiction, whether the question is raised or not. This for the reason that lacking jurisdiction, any decision it might render on the merits would be void. Town of Canton v. Moberly, 340 Mo. 610, 101 S.W.2d 722; McMurray v. Kansas City Gas Co., 353 Mo. 1180, 186 S.W.2d 593; State ex rel. v. Hoffman, 313 Mo. 667, 288 S.W. 16; Superior Press Brick Co. v. City of St. Louis, Mo.Sup., 152 S.W.2d 178.

Nor is this duty restricted to the determination of whether the subject matter of the case, the issue to be decided, or the amount in dispute, brings the case within the court's jurisdiction, but it extends as well to the question of whether there has been such a compliance by the appellant with prescribed statutory procedure as to have amounted to a valid exercise of the right of appeal. It is elemental that the right of appeal exists only as conferred or provided for by statute. It follows, therefore, that unless the particular action or decision from which the appellant undertakes to appeal is one made appealable by statute, the right of appeal does not exist; and an appeal purportedly taken from a nonappealable action or decision must consequently be dismissed, since an appellate court is without authority to act on appeals beyond the provisions made by law. Boyd v. Logan Jones Dry Goods Co., 335 Mo. 947, 74 S.W.2d 598; Pence v. Kansas City Laundry Service Co., 322 Mo. 930, 59 S.W.2d 633; State ex rel. v. Trimble, 333 Mo. 51, 62 S.W.2d 473; Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614.

It appears from the transcript in the case at bar that the court, on March 14, 1945, rendered a judgment final in form, finding

192 S.W.2d 679

the issues in favor of plaintiff and against defendant, and assessing plaintiff's recovery at the sum of $2,460.65.

Thereafter, within ten days, defendant filed its motion for a new trial, which was overruled on May 14, 1945, by an order duly entered of record.

Thereupon, on May 19, 1945, defendant filed with the clerk of the court the following notice of appeal: "Notice hereby given that Hayes Truck Lines, a corporation, above-named, hereby appeals to the St. Louis Court of Appeals from the order and judgment overruling defendant's motion for new trial entered in this action on the 14th day of May, 1945."

It is thus to be observed, taking the record literally, that defendant took its appeal, not from the final judgment in the case, but from the order overruling its motion for a new trial.

In cases arising under the old code, it was held on numerous occasions that an appeal did not lie from an order overruling a motion for a new trial, the reason being that the former statute conferring the right of appeal, Sec. 1184, R.S. Mo.1939, Mo.R.S.A. § 1184, made no provision for an appeal from such order. It was pointed out in explanation of the legislative omission that an order overruling a motion for a new trial was but a step leading up to a final judgment from which an appeal would lie,...