Opinion
No. WD 38305.
March 17, 1987.
APPEAL FROM THE CIRCUIT COURT, ATCHISON COUNTY, THOMAS W. KENNISH, J.
Peter M. Somerville, Rock Port, for petitioner-appellant.
Frank H. Strong, Jr., Strong, Strong Prokes, Maryville, for respondent-respondent.
Before TURNAGE, P.J., and SHANGLER and GAITAN, JJ.
Willard D. Shewey appeals from a judgment entered in his dissolution action against his wife, Violet L. Shewey. Willard raises a number of points, among them the fact that the court failed to distribute a riding lawnmower. Violet agrees the court failed to dispose of the lawnmower and, in addition, points out the court failed to dispose of an LP gas tank and about $7500 which was due Willard for harvesting and trucking grain. Appeal dismissed.
In State ex rel. McClintock v. Black, 608 S.W.2d 405, 406[1] (Mo. banc 1980), the Court held that when undistributed property is discovered before the time for an appeal has run, the appellate court must dismiss the appeal because the trial court has not exhausted its jurisdiction and has not entered a final judgment from which an appeal can be taken.
This is such a case. The parties agree the court did not distribute all of the marital property and for that reason the trial court did not exhaust its jurisdiction and has not entered a final judgment from which an appeal will lie.
It is unfortunate that this case cannot be finally concluded, but because of the failure to distribute all of the property, this court has no alternative but to dismiss the appeal. The effect of this dismissal is to again vest this case in the jurisdiction of the trial court, which means that the court will be required to enter a new judgment covering the entire case. This court would suggest that the court review its award of maintenance to Violet in light of § 452.335.1(1), RSMo 1978, prior to entering a new judgment. Obviously, the parties should insure that the new judgment disposes of all of the property.
Appeal dismissed.
All concur.