James Clark v. Thomas W. Dubbs

Respondent, hereinafter referred to as the plaintiff, obtained a jury verdict and resulting judgment in the amount of $7,000.00
in this case, arising out of an automobile accident. Upon his timely after trial motion being overruled, appellant, hereinafter
referred to as the defendant, filed notice of appeal. Our attention is first directed to the notice of appeal due to plaintiff's
motion to dismiss this appeal which, as is our custom, was taken with the case when it was submitted. The notice of appeal
filed by the defendant stated that the appeal was taken "* * * from the Order of the Trial Court overruling defendant's motion
for judgment or for a new trial entered in this action on the 19th day of June 1961." There is no appeal from such an order,
appeals lying only from final judgments, §§ 512.020, 512.050, R.S. Mo. 1959, V.A.M.S. In their reply brief,
the defendant's counsel frankly concedes that the notice of appeal is, as he puts it, "technically imperfect" and that the
appeal should have been taken from the judgment entered on March 30, 1961. However, he urges that this appeal should not be
dismissed as it constitutes an attempt in "good faith to appeal from the verdict and judgment." There is no doubt but that
this court, and all the appellate courts of this state, have repeatedly stated that if the appeal can be viewed as a good
faith attempt to properly appeal, it will not be dismissed, Taylor v. Hitt, Mo. App., 342 S.W.2d 489; Walker v. Thompson Mo.,
338 S.W.2d 114; Ozark Border Electric Cooperative v. Stacy Brothers, Mo. App. (Springfield), 348 S.W.2d 586; Standley v. Western
Auto Supply Co., Mo. App. (Kansas City), 319 S.W.2d 924. We will reluctantly accept defendant counsel's statement that this
disregard of the plain and clear language of the statutory requirement is a good faith attempt to comply with its plain and
unambiguous terms. The motion will be overruled. In this appeal the defendant raises three points. He contends that the trial court prejudicially erred in refusing to give
his offered Instruction B; that it erred in giving Instruction No. 5 offered by the plaintiff; and that the verdict was so
excessive as to indicate bias, prejudice and passion which was created by misconduct of plaintiff's counsel. Because of the
nature of these allegations of error and our Disposition of the appeal, the factual review will be very limited.