Freeman v. McCrite

NIXON, P. J.

This was a suit on certain promissory notes alleged in the petition to have been executed by defendants to Ream, Flummerfelt & Company, a partnership, and assigned by said company to A. J. Ream and by him assigned to “the plaintiff.” The petition contained -three counts, each count describing a note upon which a balance was claimed to-be due. Defendants prevailed in a trial before the court sitting as a jury, and the case is here on appeal.

Respondents, not being satified with appellant’s abstract, have filed in this court in accordance with our Rule 1, an additional abstract purporting to contain all the record entries in this cause in the circuit *3 court, which additional abstract is sworn to by the circuit clerk as true and correct, and appellant has not challenged its correctness. There is nothing in appellant’s abstract to show that both G. W. Freeman and the Bank of Mansfield (the original plaintiffs) did not take the appeal, but in respondents’ additional abstract the record entries are set forth and clearly show that G. W. Freeman alone took the appeal. The affidavit for appeal is not set forth in appellant’s abstract, but is fully set forth in respondents’ additional abstract and it is shown thereby that Robert Lamar “as agent and attorney for G. W. Freeman” made and swore to the affidavit; so that no appeal was taken by the Bank of Mansfield, although the name of the Bank of Mansfield appears in the appellant’s abstract and brief as a coappellant. In his testimony at the trial G. W. Freeman himself stated that he had been president of the Bank of Mansfield for about sixteen or seventeen years and that the Bank of Mansfield “is the owner of the three notes attached to the petition and marked Exhibits A. B. and C. It became the owner of them about a year- — -I will say about eight to twelve months after their execution.”

Our statute, section 2038, Revised Statutes 1909, provides that “any party to a suit aggrieved by any judgment in any civil action from which an appeal is not prohibited by the Constitution, may take his appeal to a'court having appellate jurisdiction . . . from any final judgment in the case . . . ” The appellant must be a party aggrieved, one who is affected by the judgment. An unnecessary party, wholly unaffected by the judgment cannot appeal therefrom. [McMurray v. Bank, 74 Mo. 394 ; Thomas v. Elliott, 215 Mo. 598 , 114 S. W. 987 .] The judgment in this case does not even impose a liability on appellant Gr. W. Freeman for costs. According to appellant’s abstract, the judgment rendered below was as follows:

*4 “Now on this day this canse coming on to be heard, the court, after hearing the evidence in the cause, renders judgment for the defendants.

“Whereupon it is ordered, considered and adjudged by the court that plaintiffs take nothing by their suit and that defendants go hence without delay and recover from plaintiff their costs herein laid out and expended

But in respondents’ additional abstract the circuit clerk swears that the second paragraph of the above judgment (which we have written in italics) was added by him on the record at the request of the attorney for the plaintiff after the granting of the appeal and without any order from the court and without notice to the defendants. The judgment, therefore, upon which appellant must rest his appeal is not a “final judgment” in favor of defendants under section 2038, Revised Statutes 1909. An appeal will not lie where there is no final judgment. [Dale v. Copple, 53 Mo. 321 ; State ex rel. v. Turner, 113 Mo. App. 53 , 87 S. W. 464 .] A final judgment must purport to be the actual and absolute judgment of the law, as distinguished from a mere finding that one of the parties is entitled to a judgment. [State ex rel. v. Klein, 140 Mo. 502, 510 , 41 S. W. 895 .] In Moran v. Plankinton, 53 Mo. 243 , it was held that a final judgment in favor of defendant should conclude substantially in this way: “It is therefore considered by the court that plaintiff take nothing by his writ and that defendant be discharged and go hence without delay and have and recover of and from said plaintiff his costs in this behalf expendéd and have hereof execution.” [Lyons & Reesman v. Rollinson, 109 Mo. App. l. c. 70, 82 S. W. 646 .]

In respondents’ additional abstract is the affidavit of the circuit clerk to the effect that he had examined his records and found no entry showing that the bill of exceptions was filed in his office on January 25, *5 1912, as stated in appellant’s abstract, or tbat it was ever filed, and tbat he bad examined tbe bill of exceptions and found thereon no filing mark showing tbat tbe same was actually filed.

These matters are pressed upon us by tbe respondents and we have no alternative. However, no great hardship will ensue, it appearing from appellant’s own testimony tbat be has no interest in tbe merits of tbe controversy concerning tbe three promissory notes, and tbat “the judgment in no way affects him and is not such a judgment as to entitle him to appeal therefrom, and it further appearing tbat tbe Bank of Mansfield, tbe real party in interst, did not feel sufficiently aggrieved by tbe outcome of tbe trial to test its soundness by an appeal. To allow tbe Bank .of Mansfield to benefit by Freeman’s appeal would be in contravention of tbe general doctrine tbat no party to a judgment shall be benefited by an appeal unless be joins in it, and would allow a party to share in all tbe advantages of an appeal without being responsible for any part of tbe costs and expense. [Christopher v. Kelly, 91 Mo. App. l. c. 100.] Tbe appeal is dismissed.

All concur.