Rose v. Township Board , 163 Mo. 396 ( 1901 )

SHERWOOD, P. J.

Plaintiffs sought and obtained a temporary, injunction to restrain defendants, among whom were the township board (which board had ordered a certain road to be opened), from opening such Toad.

On coming in of their answer, defendants moved to dissolve the temporary injunction, which motion was granted and plaintiffs have appealed to this court.

Omitting caption, the judgment, so far as necessary to quote it, is the following: “That the plaintiffs are not entitled to the relief prayed for, that the injunction formerly granted in this cause to prevent the defendants, his (sic) servants and agents from opening a public road, etc., be, and the same is hereby dissolved, and that the defendants recover of the plaintiffs their costs and charges in this behalf expended and thereof have execution.” ,

This is not a final judgment and no appeal lies therefrom. [Tanner v. Irwin, 1 Mo. 65; Johnson v. Board of Education, 65 Mo. 47; Witthaus v. Bank, 18 Mo. App. 181; Richards v. Johnson, 34 Mo. App. 83.]

But even if there had been a final judgment in this cause, it is not seen how this would better plaintiffs, because although the record proper recites that the motion for a new trial was filed and overruled, and although the bill of exceptions recites the same fact, yet the motion itself is not in evidence.

As pointed out in State v. Griffin, 98 Mo. 672, and subsequent cases, the old law has been so changed that, so far as concerns motions for a new trial, motions in arrest and instructions, they need not be copied into the bill of exceptions, provided they are copied into the transcript, and the bill of exceptions contains a direction to the clerk to copy the same; but these statutory provisions were not complied with in this instance.

Eor lack of a final judgment the appeal is dismissed.

All concur.