Weller v. Hayes Truck Lines
| Decision Date | 19 February 1946 |
| Docket Number | 26907 |
| Parties | WELLER v. HAYES TRUCK LINES |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
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; PER CURIAM
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, 3132
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., 332 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 & Trust3
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 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, 4 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, so that differing from a case where the motion was sustained, there was no necessity for provision to be made for an appeal from an order overruling the motion. In the absence of statutory provision, an appeal from such an order was consequently taken without sanction of law, and conferred no authority upon the appellate court except to enter an order dismissing the appeal. State ex rel. v. Trimble, supra; Lowe v. Frede, 258 Mo. 208, 167 S.W. 443; Bonfils v. Martin's Food Service Co., 299 Mo. 500, 253 S.W. 982; Pence v. Kansas City Laundry Service Co., supra; Williams v. Pemiscot County, 345 Mo. 415, 133 S.W.2d 417; Bueker v. Aufderheide, Mo.Sup., 111 S.W.2d 131; Arcadia Timber Co. v. Evans, 304 Mo. 674, 264 S.W. 810; Wehrs v. Sullivan, Mo.Sup., 187 S.W. 825; Bonanomi v. Purcell, 287 Mo. 436, 230 S.W. 120; Polizos v. Furman, Mo.App., 116 S.W.2d 151; Woodcock v. Kansas City Stock Yards Co., Mo.App., 485 S.W.2d 112; State ex rel. v. Renner, Mo.App., 138 S.W.2d 756.
The only question remaining is whether the situation is altered by reason of the fact that the appeal in the present case was taken under the provisions of the new civil code.
The section of the new code conferring the right of appeal and defining and enumerating the specific orders and decisions from which an appeal may be taken is Section 126, Laws 1943, p. 390, sec. 126, Mo.R.S.A. § 847.126. A comparison of this section with its predecessor at once discloses that in all material respects it is a substantial re-enactment of Section 1184, supra, which identified the orders and decisions made appealable under the old code. The minor changes made in order to harmonize the section with other provisions of the new code as well as with provisions relating to appeals in special statutory proceedings in nowise differentiate it from the former section as regards its general scope and purpose, nor do they affect the application of the cases based upon the old section that unless a particular action or decision is made appealable by statute, the right of appeal does not exist. Just as in the case of Section 1184, the new section restricts the right of appeal to final judgments and certain specified orders, including an order granting a new trial, but making no mention of an order denying a new trial. In this respect it is identical with the former section, and so far as its express provisions are concerned, affords no more authority for an appeal from an order overruling a motion for a new trial than was true under Section 1184.
Nor is the result affected by the change in the method of procedure by which an appeal is taken.
Under the old code, an appeal was allowed upon the filing of a timely affidavit, stating, among other things, that the affiant believed that the appellant was aggrieved by the judgment or decision of the court. Sec. 1186, R.S.Mo.1939 Mo.R.S.A. §...
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