Stewart v. Stewart

670 S.W.2d 93

• Court: Missouri Court of Appeals
• Decided: March 27, 1984
• Docket: No. 46834
• Status: Published

Opinion

CLEMENS, Senior Judge.

This is an appeal by the wife from a default judgment entered against her in a marriage dissolution case. Appellant filed no motion for relief from the default judgment, which was rendered on July 8, 1982. On February 8, 1983 the Missouri Court of Appeals sustained the wife’s motion for leave to file a late notice of appeal.

The dispositive issue is whether this court has jurisdiction, an issue which may be raised sua sponte. Corder v. Corder, 546 S.W.2d 798, 800[1] (Mo.App.1977).

“ ... [A] default judgment is not appealable in the absence of a motion to set aside or vacate.” Vonsmith v. Vonsmith, 666 S.W.2d 424 at 424 (Mo. banc 1984). “An exception is made to the general rule where on appeal the party against whom default was entered raises a question of subject matter jurisdiction or the sufficiency of the petition.” Blackmore v. Blackmore, 639 S.W.2d 268, 269[4] (Mo.App. 1982).

Appellant filed no motion to set aside or vacate the default judgment. She raises no questions concerning the trial court’s jurisdiction or the sufficiency of the petition.

In view of our finding that we lack jurisdiction, it is unnecessary to discuss the husband’s contention that the order permitting a late filing of a notice of appeal should not have been issued.

The appeal is dismissed.

SNYDER, P.J., and GAERTNER, J., concur.