World Franchisers, Inc. v. Birk

Decision Date04 June 1970
Docket NumberNo. 8971,8971
Citation456 S.W.2d 606
PartiesWORLD FRANCHISERS, INC., Plaintiff-Respondent. v. Raymond J. BIRK, Defendant-Appellant.
CourtMissouri Court of Appeals

James Dunn, Carthage, for plaintiff-respondent.

Kevin Kirwan and Raymond J. Birk, Joplin, for defendant-appellant.


Appellant-defendant filed the motion now being considered on June 3, 1970, seeking an order which would extend the time for filing the transcript on appeal. The matter is set for hearing on appeal for June 8, 1970. The notice of appeal (which is the second filed by appellant in the same case) was filed in the Circuit Court of Jasper County on September 19, 1969, and the Rules of Civil Procedure imposed upon appellant the duty to file the transcript in this court (Civil Rule 82.12(a), V.A.M.R.) within 90 days from the date of filing of the notice of appeal, or on or before December 18, 1969. Civil Rule 82.18. Combining our judicial notice of the first appeal to this court (Burton v. Moulder, Mo., 245 S.W.2d 844, 846(1); In re Taylor, Mo.App., 421 S.W.2d 57(1)) with the information at hand on the present appeal, we glean the following to be the facts.

On June 19, 1969, the trial court entered judgment on a verdict it had directed for plaintiff-respondent, and appellant filed his first notice of appeal on the same day. Appellant wrote to the court reporter on July 18, 1969, requesting that she 'prepare the transcript of testimony,' but there is no suggestion that a copy of this letter was 'filed in the case' or that the trial court was ever asked to or did extend the time for filing the transcript either in relation to the first or second appeals. Civil Rule 82.19. Appellant subsequently advised this court that he considered the first appeal 'premature,' although he took no action to withdraw the first appeal in the trial court. Civil Rule 82.20. The first appeal was docketed for hearing on March 16, 1970, and was dismissed because of appellant's failure to comply with the rules. Civil Rule 83.26.

Appellant apparently filed a motion for new trial after the first notice of appeal was filed. We do not know when this was done and only assume it was filed within the time prescribed by Civil Rule 78.02. In any event, it seems the new trial motion was overruled on September 10, 1969, and on September 19, 1969, appellant filed his second notice of appeal which he denominated as an appeal 'from the directed verdict, judgment and overruling of Defendant's motion for new trial entered in this action on the 10th day of September, 1969.' Of course, the appeal should have been taken from the judgment entered June 19, 1969 (Civil Rule 82.04; V.A.M.S. § 512.050), and not from the directed verdict or order overruling the new trial motion which is not an appealable order. Mills v. Berry, Mo.App., 395 S.W.2d 228, 231(8). However, as we atttribute to appellant a good faith effort to appeal from the judgment, the second notice of appeal will be so treated. State ex rel. State Highway Commission v. Kendrick, Mo., 383 S.W.2d 740, 743(2).

It goes without saying that a transcript on appeal has never been prepared, tendered or filed and it should be noted that subsequent to filing his second notice of appeal, appellant expended no effort to secure a transcript or to arrange for an extension of time for filing the transcript until a scant...

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14 cases
  • Kipper v. Vokolek
    • United States
    • Missouri Court of Appeals
    • January 13, 1977
    ...judgment, the notice of appeal will be so treated. In Interest of R.L.P., 536 S.W.2d 41, 43(7) (Mo.App.1976); World Franchisers, Inc. v. Birk, 456 S.W.2d 606, 607(2) (Mo.App.1970). Our initial concern is with defendant Dorothy Vokolek's motion to supplement the transcript on appeal with the......
  • Cox v. Lee, 9881
    • United States
    • Missouri Court of Appeals
    • November 17, 1975
    ... ... World Franchisers, Inc. v. Birk, 456 S.W.2d 606, 607(1, 2) (Mo.Ap.1970) ... ...
  • Kalvar Corp. v. Burrow, 25969
    • United States
    • Missouri Court of Appeals
    • March 5, 1973
    ...October 13, 1971, under which the trial court required the clerk to pay the garnishment proceeds to respondent. See World Franchisers, Inc. v. Birk, Mo.App., 456 S.W.2d 606. We turn now to the sole point contained in appellant's Points and Authorities, which is that the court below erred in......
  • Wallace v. Hankins
    • United States
    • Missouri Court of Appeals
    • August 31, 1976
    ...the notice as a good faith effort to appeal from a final, appealable judgment if there be one in this case. World Franchisers, Inc. v. Birk, 456 S.W.2d 606, 607(2) (Mo.App.1970). The right of appeal shall be as provided by law' (Rule 81.01, V.A.M.R.) and in civil actions the right is govern......
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