James L. Labrier v. Anheuser Ford

Respondent brought an action against appellants alleging slander in count I and failure to issue a proper service letter 1 in count II. Judgment was entered on a jury verdict for respondent in the amount of $6,000 actual damages on count I and $10,000 actual and $32,000 punitive damages on count II. Appellants appealed only the judgment rendered on count II. The Missouri Court of Appeals, Eastern District, dismissed the appeal. It found that the notice of appeal was not timely filed in accordance with Rule 81.04 and, even if it had been, the transcript was filed more than ninety days thereafter which, in itself, would warrant dismissal of the appeal. This Court granted transfer and will consider the cause as if on original appeal. Mo. Const. art. V, § 10. An appeal is a right conferred by statute. Rule 81.01. Therefore, it must be taken in accordance with that statute. Since Rule 81.04(a) ( § 512.050, RSMo 1978) requires that a notice of appeal be filed not more than ten days after the date of final judgment, a prerequisite to perfecting an appeal is the timely filing of the notice, except if within six months of the date of final judgment, the filing is permitted by request to and order of the appropriate appellate court. Rule 81.07(a). See § 512.060.1, RSMo 1978. Timely filing of the notice of appeal has been characterized as jurisdictional. See Rahhal v. Mossie, 577 S.W.2d 143, 145 (Mo.App. 1979); Kuhn v. Bunch, 529 S.W.2d 200, 200-01 (Mo.App. 1975).