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eBook details

• Title: William Aubuchon v. Don Ayers
• Author : St. Louis District Missouri Court of Appeals
• Release Date : January 15, 1966
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 59 KB

Description

The plaintiff brought an action in the magistrate court of the City of St. Louis for personal injuries and property damage arising out of an automobile collision. The prayer of the petition was for $750.00 and costs. Trial resulted in a judgment in favor of plaintiff for the amount prayed. The defendant posted bond and filed his timely notice of appeal. The appeal rested in the circuit court for slightly over two months and then plaintiff, by leave of court, dismissed his ""cause of action"" without prejudice and at his costs. The defendant's motion to set aside that dismissal was overruled by the trial court. Two days later the defendant filed a motion stating that he took the appeal pursuant to Civil Rule 82.05, (a), V.A.M.R. The trial court sustained this motion stating ""leave granted."" The plaintiff then filed a motion to set aside this order granting defendant leave to appeal. The trial court also overruled this motion. The plaintiff later filed a new action in the circuit court wherein he prayed for $15,000.00 for damages arising from the same accident. Recognizing that it has long been the rule in this state that an appeal will not lie from an order granting a voluntary non-suit (§ 512.020, RSMo 1959, V.A.M.S., and cases collected at note 83), the plaintiff has filed a motion to dismiss this appeal on the grounds the trial court's ruling on defendant's motion was not an appealable judgment. We took that motion with the case and it is now for our ruling. It should be pointed out what little difference exists as to whether the decision in the instant appeal be ruled upon the motion to dismiss or upon the merits of the appeal is one of form and not of substance. This for the reason that a party cannot appeal unless he is ""aggrieved"" by the final judgment of the trial court. That is merely another way of saying that the party ""aggrieved"" has shown he will lose some right of defense or the other party will gain some undue advantage if allowed to dismiss without prejudice, and this has been held to be the proper scope of inquiry in determining whether a party should be allowed to dismiss without prejudice. McClellan v. Sam Schwartz Pontiac, Inc., Mo., 338 S.W.2d 49, l.c. 53, quoting from Smith v. Taylor, Mo. App., 289 S.W.2d 134, l.c. 140. For that reason we will rule this appeal upon the motion to dismiss the appeal on the ground the defendant was not aggrieved by the trial court's ruling. It should be noted that a ruling upon the motion constitutes, in effect at least, a ruling upon the merits and in this respect the instant case is somewhat unusual.

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