Opinion
No. ED 77424
Filed: September 19, 2000
APPEAL FROM THE CIRCUIT COURT OF LEWIS COUNTY, HONORABLE RUSSELL E. STEELE.
J. Patrick Wheeler, 314 North Eleventh Street, P.O. Box 248, MO 63435, for appellant.
William E. Alberty, 215 N. Main Street, P.O. Box 218, Edina MO 63537-0218, for respondent.
Before Robert G. Dowd, Jr., P.J., Mary Rhodes Russell, J., and Richard B. Teitelman, J.
Scott and Mark Hoewing ("sons"), residual beneficiaries of Wayne Hoewing's ("father") will, appeal the Lewis County Circuit Court's dismissal of their Petition for Declaratory Judgment.
We dismiss the appeal because the trial court order was not a final appealable judgment as it lacked the denomination "judgment."
Father executed his Last Will and Testament on July 8, 1982. At the time of the will's execution he was married to Yvonne Hoewing-Kurz ("former wife"), however, their marriage was later dissolved. At the time of father's death, he and his former wife jointly owned property, which constituted approximately 5 percent of his taxable estate.
Former wife refused to pay any of the estate taxes stating that Article Seven of father's will provided that all death taxes were to be paid by the estate, "whether or not such property passes under this will. . . ."
Sons filed a petition for Declaratory Judgment in the Circuit Court stating that former wife was constructively dead according to Section 474.420, RSMo 1994 and, therefore, all benefits to her under the will were extinguished. Sons further asked the trial court to apportion the estate taxes and award a judgment in their favor for the amount of taxes as set forth in their pleadings.
All further statutory references are to RSMo 1994 unless otherwise indicated.
Former wife filed a Motion to Dismiss stating that sons' petition for Declaratory Judgment required the court to construe father's will, an action in the exclusive jurisdiction of the probate division of the circuit court. The trial court entered an "Order Sustaining Defendant's Motion to Dismiss" on January 18, 2000. This appeal follows.
Section 476.410 provides for transfer to the proper division of the circuit court if a case is filed in the wrong division.
An appeal can only be taken from a final judgment. Section 512.020. If the judgment is not final, the appellate court lacks jurisdiction to hear the appeal, and it must be dismissed.Century Fin. Servs. Group, Ltd. v. Roche, 896 S.W.2d 743, 744 (Mo.App. 1995). Even if the parties fail to raise the issue of appellate jurisdiction, we are obligated to raise it sua sponte.Id.
For purposes of determining the appealability of the disposition made by the trial court, a judgment must be (1) in writing, (2) signed by the judge, (3) denominated "judgment" or "decree," and (4) filed. Rule 74.01(a); Fowler v. Fowler, 984 S.W.2d 508, 512 (Mo.banc 1999).
Here, the January 18 order is not labeled or titled "judgment" at the top, thus it is not denominated a "judgment." The designation of "judgment" also does not appear in the body of the writing or in the January 18 docket entry. As a result, there is no final judgment and our court lacks jurisdiction to hear this appeal.
Appeal dismissed.