Wirthlin v. Wirthlin
Decision Date | 13 December 1983 |
Docket Number | No. 47191,47191 |
Citation | 662 S.W.2d 571 |
Parties | Edward H. WIRTHLIN, Plaintiff-Respondent, v. Mary Patricia WIRTHLIN, Defendant-Appellant. |
Court | Missouri Court of Appeals |
John L. Davidson, Klamen & Danna, Clayton, for defendant-appellant.
Bamburg & Heinz, St. Louis, for plaintiff-respondent.
Defendant appeals from the trial court's order denying her motion to transfer the cause from the equity to the civil jury trial docket.
Plaintiff filed a petition to partition certain real estate. Defendant filed an answer denying that plaintiff had any interest in the property and filed a three count counterclaim. Defendant contending her counterclaim raised legal issues filed a "Motion To Transfer Cause From Equity To Civil Jury Trial Docket." The court denied the motion and stated, "[i]nsofar as compatible with law the Orders herein entered are made final for purposes of appeal."
On appeal, defendant contends the trial court's action denied her the right to a jury trial. We have reservations that defendant's request to transfer the cause to the civil jury trial docket constitutes a proper request for a jury trial. See Hadley Bros.--Uhl Co. v. Scott, 93 S.W.2d 276, 280 (Mo.App.1936).
But even if we treat it as such, it is not an appealable order. The trial court's designation of an order as final for purposes of appeal pursuant to Rule 81.06 does not end the inquiry. Erickson v. Lockhart, 639 S.W.2d 418 (Mo.App.1982); Donnelly v. American Family Mutual Insurance Co., 652 S.W.2d 744, 745 (Mo.App.1983).
The right of appeal is statutorily governed by § 512.020, RSMo 1978 and Rule 81.06 cannot extend it. Moreland v. State Farm Fire & Casualty Co., 620 S.W.2d 24, 25 (Mo.App.1981). Rule 81.06 does provide for appeal from certain interlocutory dispositions of claims. However, in order for the disposition to be a proper subject for appellate review, it must constitute a distinct judicial unit; that is a judgment which terminates the action with respect to the claim adjudged. Lipton Realty, Inc. v. St. Louis Housing Authority, 655 S.W.2d 792, 793 (Mo.App.1983).
The order under review is nothing more than a pre-trial order relating to a procedural matter. Rule 81.06 had no application to such orders. Fombelle v. Poteete, 655 S.W.2d 801, 802 (Mo.App.1983).
Defendant cites Benoist v. Thomas, 121 Mo. 660, 27 S.W. 609 (1894) to support her contention that an order denying a request for a jury trial in a partition...
To continue reading
Request your trial-
City of Mound Bayou v. Johnson
...MISSOURI The right of appeal is statutorily governed by Sec. 512.020, RSMo 1978 and Rule 81.06 cannot extend it. Wirthlin v. Wirthlin, 662 S.W.2d 571, 572 (Mo.App.1983). It is elementary that the right of appeal is purely Roberts v. Harms, 698 S.W.2d 608, 610 (Mo.App.1985). NEW MEXICO Art. ......
-
Marshall v. State
...MISSOURI "The right of appeal is statutorily governed by § 512.020, RSMo 1978 and Rule 81.06 cannot extend it." Wirthlin v. Wirthlin, 662 S.W.2d 571, 572 (Mo.App.E.D.1983). "It is elementary that the right of appeal is purely statutory." Roberts v. Harms, 698 S.W.2d 608, 610 NEW MEXICO Arti......
-
Speck v. Union Elec. Co., 68781
...lands was without effect since Rule 81.06 is inapplicable where there is no separate trial of any claim); Wirthlin v. Wirthlin, 662 S.W.2d 571, 572 (Mo.App.1983) (trial court's designation as final for purposes of appeal of its order denying defendant's motion to transfer cause from equity ......
-
Hanrahan v. Nashua Corp., 53608
...690 S.W.2d 458, 459 (Mo.App.1985)--order imposing sanction; Daniels v. Richardson, 665 S.W.2d 76, 77 (Mo.App.1984); Wirthlin v. Wirthlin, 662 S.W.2d 571, 572 (Mo.App.1983)--motion to transfer cause from equity to jury trial docket; Fombelle v. Poteete, 655 S.W.2d 801, 802 (Mo.App.1983). The......