BALL, II v. Shannon

Missouri Court of Appeals

BALL, II v. Shannon

964 S.W.2d 858, 1998 Mo. App. LEXIS 387

CourtMissouri Court of Appeals

DecidedMarch 5, 1998

Docket21815

StatusPublished

Cited by8 cases

This text of 964 S.W.2d 858 (BALL, II v. Shannon) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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BALL, II v. Shannon, 964 S.W.2d 858, 1998 Mo. App. LEXIS 387 (Mo. Ct. App. 1998).

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Opinion

PREWITT, Judge.

Plaintiffs filed “Petition on Promissory Note.” Defendant responded with a motion:

[A]skmg the Court to dismiss this action for failure to state a claim upon which legal or equitable relief can be granted, for improper service of process, for improper venue, and for lack of jurisdiction of this Court over the subject matter, or, in the *859 alternative, and only if this motion to dismiss is overruled, moves to grant this Defendant a summary judgment....

Following a hearing on the motion, the legal file, the only record before us, reflects that the parties’ attorneys were sent a letter from the secretary of Presiding Judge Eiffert stating the following:

The following docket entry was made June 6, 1997, in the above cause:

Motion to dismiss sustained; cause dismissed.

Isl Judge Eiffert

No copies of the docket sheet or sheets are in the legal file, nor is there any other purported order or judgment shown. Attached to the notice of appeal, apparently to reflect the judgment or order appealed from, is a copy of this letter.

Obviously, this letter does not comply with Rule 74.01(a). That rule requires that for there to be a judgment, it must be (1) in writing; (2) signed by a judge; (3) denominated “judgment”; and, (4) filed. Brooks v. Director of Revenue, 954 S.W.2d 715, 716 (Mo.App.1997). See also City of St. Louis v. Hughes, 950 S.W.2d 850 (Mo.banc 1997).

Even if there is a docket entry in accordance with the letter, that would still be insufficient upon which to base an appeal. An order dismissing a petition for failure to state a claim must meet the judgment requirements of Rule 74.01(a). See Chambers v. Easter Fence Co., Inc., 943 S.W.2d 863 (Mo.App.1997). If such a docket entry was made it might be sufficient as to requirements 1, 2, and 4. However, if it is not denominated a “judgment,” and nothing indicates that it was, there is no judgment from which an appeal lies in this situation. Chambers, 943 S.W.2d at 865-66. Absent a judgment this Court does not have jurisdiction and must dismiss the appeal. Brooks, supra.

The appeal is dismissed.

GARRISON, P.J., and CROW, J., concur.

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PREWITT, Judge.

Plaintiffs filed “Petition on Promissory Note.” Defendant responded with a motion:

[A]skmg the Court to dismiss this action for failure to state a claim upon which legal or equitable relief can be granted, for improper service of process, for improper venue, and for lack of jurisdiction of this Court over the subject matter, or, in the *859 alternative, and only if this motion to dismiss is overruled, moves to grant this Defendant a summary judgment....

Following a hearing on the motion, the legal file, the only record before us, reflects that the parties’ attorneys were sent a letter from the secretary of Presiding Judge Eiffert stating the following:

The following docket entry was made June 6, 1997, in the above cause:

Motion to dismiss sustained; cause dismissed.

Isl Judge Eiffert

No copies of the docket sheet or sheets are in the legal file, nor is there any other purported order or judgment shown. Attached to the notice of appeal, apparently to reflect the judgment or order appealed from, is a copy of this letter.

Obviously, this letter does not comply with Rule 74.01(a). That rule requires that for there to be a judgment, it must be (1) in writing; (2) signed by a judge; (3) denominated “judgment”; and, (4) filed. Brooks v. Director of Revenue, 954 S.W.2d 715, 716 (Mo.App.1997). See also City of St. Louis v. Hughes, 950 S.W.2d 850 (Mo.banc 1997).

Even if there is a docket entry in accordance with the letter, that would still be insufficient upon which to base an appeal. An order dismissing a petition for failure to state a claim must meet the judgment requirements of Rule 74.01(a). See Chambers v. Easter Fence Co., Inc., 943 S.W.2d 863 (Mo.App.1997). If such a docket entry was made it might be sufficient as to requirements 1, 2, and 4. However, if it is not denominated a “judgment,” and nothing indicates that it was, there is no judgment from which an appeal lies in this situation. Chambers, 943 S.W.2d at 865-66. Absent a judgment this Court does not have jurisdiction and must dismiss the appeal. Brooks, supra.

The appeal is dismissed.

GARRISON, P.J., and CROW, J., concur.

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964 S.W.2d 858, 1998 Mo. App. LEXIS 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ball-ii-v-shannon-moctapp-1998.

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