Public-domain · open source
OpenJurist

529 S.W.2d 200

Kuhn v. Bunch

Missouri Court of Appeals

Decided October 16, 1975

Missouri Court of Appeals · decided 1975-10-16

Key passage — most relied on by later courts

“For the purpose of ascertaining the time within which an appeal may be taken, a judgment becomes final at the expiration of thirty days after the entry of such judgment, if no timely motion for a new trial is filed. ... In the event a motion for a new trial is timely filed, the judgment becomes final at the expiration of ninety days after the filing of such motion or, if such motion is passed on at an earlier date, then at the date of disposition of said motion. Authorized after-trial motions shall be treated as, and as a part of, a new trial motion for the purpose of ascertaining the time within which an appeal must be taken and all such after-trial motions shall be disposed of at the same time. Any authorized after-trial motion not passed on at the time the motion for a new trial is determined shall be deemed overruled as of the same date. The filing and disposition of such motions has the same effect as to time for appeal in all cases whether or not the motion has any function other than to seek relief in the trial court.”

quoted by 1 later decision, including Siliven v. Cowhick

Relies on Luethans v. Luethans · Jenkins v. Roberts

Good law ✅— No negative treatment on recordhow we know

Decided 1975-10-16

How this case has been cited

Cited by 14 later decisions — most recently September 1992

14 state decisions

80197519801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

PER CURIAM:

¶1 January 25, 1974 — Judgment was entered for defendants in this court-tried case.

¶2 February 8, 1974, or 14 days after judgment, plaintiff timely filed “Motion to Amend Judgment” pursuant to Rule 73.01-1(c), V.A.M.R. The motion was heard the same day of its filing and was overruled.

¶3 February 22, 1974, or 14 days after the motion was overruled, plaintiff filed notice of appeal.

¶4 Even in the absence of a suggestion that the notice of appeal is out of time, we are duty bound to determine its timeliness because we lack appellate jurisdiction unless the notice of appeal was filed within *201 the time prescribed by Rule 81.04, V.A.M.R. Jenkins v. Roberts, 420 S.W.2d 24, 25[1] (Mo.App.1967).

¶5 Rule 81.05(a), V.A.M.R., provides, in part: “Authorized after-trial motions shall be treated as . . .a new trial motion for the purpose of ascertaining the time within which an appeal must be taken [and] [t]he filing and disposition of such motions has the same effect as to time for appeal in all cases whether or not the motion has any function other than to seek relief in the trial court.” The rule also states that when a new trial motion, and hence any authorized after-trial motion, is passed on before the expiration of 90 days, the judgment becomes final for appeal “at the date of disposition of said motion.”

¶6 Plaintiff’s authorized after-trial “Motion to Amend Judgment” (Rule 73.01-1(c), V.A.M.R.) deferred the finality of the judgment for appeal under Rule 81.05(a), V.A.M.R., to the same effect that a motion for a new trial would have deferred it. Jenkins v. Jenkins, 243 S.W.2d 804, 806-807[1] (Mo.App.1951). However, when the court overruled the motion, the judgment then became final. Rule 81.04 states: “No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.” Since the notice of appeal was not filed until the 14th day after the judgment became final, we have no jurisdiction and no alternative but to dismiss the appeal. It is so ordered.

All concur.
/529/sw2d/200 · .json · Public domain