Opinion
No. 27899.
July 18, 1950.
APPEAL FROM THE CIRCUIT COURT OF WARREN COUNTY, FRANK HOLLINGSWORTH, J.
George B. Calvin, Washington, for appellant.
Theodore P. Hukriede, Washington, for respondent.
This is an action to contest the will of Anna Alberswerth. The grounds of the contest alleged in the petition were undue influence and lack of testamentary capacity. At the close of the whole case the trial court directed a verdict sustaining the will. Contestant, Milford W. Alberswerth, has appealed.
Respondent, Henry Lohse, has filed a motion to dismiss the appeal, which, in our opinion, must be sustained.
Judgment was rendered on August 31, 1949. A motion for new trial was filed by plaintiff on September 9, 1949, which was overruled by the court on October 6, 1949. The record further shows that, on October 15, 1949, plaintiff's attorney filed a notice of appeal to this court in said cause, but the record of said filing fails to show that a docket fee was paid at the time, as required by Section 129 of the General Code of Civil Procedure, Laws Mo. 1943, sec. 129, p. 353. Mo.R.S.A. § 847.129. On October 20, 1949, thirteen days after the judgment became final, plaintiff's attorney paid into court the ten dollar docket fee. The record of this payment, as shown by the transcript, is as follows: "And thereafter, on the 20th day of October, 1949, the following proceedings were had in this cause in the Circuit Court of Warren County, Missouri, as is shown by the record of said court: (Omitting Caption) Now on this 20th day of October, 1949, comes the plaintiff by his attorney and counselor, George B. Calvin, and pays into the hands of the Clerk of this Court a Ten Dollar ($10.00) Appeal docket fee, and plaintiff's notice of appeal having heretofore been presented and filed on the 15th day of October, 1949, but no appeal docket fee being paid at that date no notice of appeal was forwarded to the attorney for defendant, but now at this date the appeal docket fee being paid, the Clerk of this Court makes copy of said notice of appeal as filed and mails by U.S. Registered Mail a copy of said appeal notice to the following named attorney at law, to-wit: Theo. P. Hukriede of Washington, Missouri, attorney of record for defendant, Henry Lohse. And also mails a copy of said notice of appeal, together with the Ten Dollar docket fee to the Clerk of the Court of Appeals for the Eastern District of Missouri at St. Louis, Missouri."
Section 129, supra, provides that no appeal shall be effective unless the notice of appeal is filed not later than ten days after the judgment or order appealed from becomes final. Said Section 129 also provides that: "The docket fee of $10.00 in the appellate court shall be deposited with the clerk of the trial court at the time of filing the notice of appeal."
Supreme Court Rule 3.28 provides: "No notice of appeal shall be accepted and filed by the clerk of any trial court unless the appellate court docket fee, required by Section 129, 1943 Act, is deposited therewith."
Our Supreme Court held, in Kattering v. Franz, 231 S.W.2d 148 (and not yet reported in State Reports), that there can be no valid filing of a notice of appeal until the docket fee is paid, and the court dismissed an appeal where, although the notice of appeal was delivered to the clerk of the trial court within the time fixed by the statute, the docket fee was not paid within ten days after the judgment became final.
Under the authority of the above-cited decision, we are bound to hold that in the case at bar there was no notice of appeal legally filed within ten days after the judgment became final.
Respondent's motion to dismiss is sustained, and the appeal herein is dismissed.
HUGHES and McCULLEN, JJ., concur.