Summary
holding an order cannot be appealed where it is neither a final judgment, nor a special order after final judgment, nor one that is treated as an order sustaining a motion for new trial
Summary of this case from Stelts v. SteltsOpinion
No. 42048.
July 9, 1951. Rehearing Denied September 10, 1951.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, JOE W. McQUEEN, J.
Gresham, Hizer Boughan and Walter J. Gresham, all of Kansas City, for appellant.
William A. Pevehouse, Kansas City, for respondent.
Plaintiff Alfred Mitchell filed this suit in the Circuit Court of Jackson County, Missouri, to recover damages from the defendant for false arrest. The amount sued for was $25,000, $10,000 actual damages and $15,000 punitive damages.
The case was placed on peremptory call for December 29, 1949. Notice was published in the Daily Record as required by the circuit court rules. Plaintiff failed to appear and the case was dismissed for want of prosecution. On January 12, 1950, plaintiff filed a motion to set aside the judgment of dismissal and to reinstate the case. This motion was sustained on January 20, 1950. On March 15, 1950, the defendant filed a motion to strike out the reinstatement of the cause. On April 28, 1950, evidence was heard on this motion and the court overruled the motion. From this order the defendant appealed to this court.
We are of the opinion that the appeal was premature. Section 512.020, R.S. Mo. 1949, does not authorize an appeal from such an order. There was no final judgment in this case. The judgment of dismissal had been set aside. The statute authorizes an appeal from an order sustaining a new trial but the order appealed from in this case cannot be treated as an order sustaining such a motion. The statute further reads that an appeal may be taken "from any final judgment in the case or from any special order after final judgment in the cause; * * *." Since there is no judgment as above indicated, the order cannot be treated as an after judgment order. An after judgment order to be appealable must be some order which allows the judgment to stand as, for example, an order on a motion to tax costs, State ex rel. Morton v. Cave, 359 Mo. 72, 220 S.W.2d 45, loc. cit. 51(11), or an order allowing attorneys' fees.
We need not discuss the merits of the motion to set aside the reinstatement. The points presented may be preserved for review if and when there is an appeal from a final judgment against the defendant or in an appeal authorized by law. Wicker v. Knox Glass Associates, Inc., Mo.Sup., 242 S.W.2d 566.
The appeal being premature, it is hereby dismissed.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.