Central Missouri Paving Co. v. Kraft

KENNEDY, Judge.

This is an attempted appeal from an order of an associate circuit judge quashing a garnishment in aid of execution, after a trial to the court. The respondent has filed a motion to dismiss the appeal, on the ground that the appeal is not properly to this court but is by way of trial de novo before a circuit judge, § 512.180.1, RSMo 1978.

The motion is sustained. The same question was before the Eastern District of this court and it was held that the Court of Appeals had no jurisdiction to entertain the appeal. Nicolai v. Faille-Talayna Pizza, Inc., 657 S.W.2d 279 (Mo.App.1983).

The appellant tells us in its suggestions in opposition to the motion that the original case which resulted in the judgment upon which the execution and garnishment were sued out, was tried to a jury upon the record, and that therefore the appeal of the subsequent order quashing the garnishment is to this court, citing § 512.180.2, RSMo 1978. That section does indeed provide for appeals directly to this court of cases tried with a jury before an associate circuit judge upon the record. But the appeal we have before us is not from the judgment in the original case, but is from the judgment in the garnishment proceeding, which is (for this purpose) a different and a separate thing. In Flynn v. First National Safe Deposit Company, 284 S.W.2d 593 (Mo.1955), the court said:

The judgment to be rendered in a garnishment proceeding is expressly denominated a “final judgment.” Section 525.-170 RSMo 1949, V.A.M.S. Conceding that a garnishment proceeding in aid of execution is technically not the institution of a new suit but only an incidental means of obtaining satisfaction of the judgment upon which the execution has been issued, Smith v. Bankers Life Ins. Co. of Nebraska, Mo.App., 170 S.W.2d 111, yet the nature of the proceeding is such as to require that the issues made up by the pleadings “shall be tried as ordinary issues between plaintiff and defendant.” Section 525.190 RSMo 1949, V.A.M.S. Not only is the judgment in a garnishment proceeding a “final judgment” in that it finally disposes of all the issues and parties, but when that judgment is in favor of the party seeking to enforce his judgment by way of garnishment, it is one upon which execution “such as is allowed by law on general judgment” may issue to enforce said judgment. Section 525.110 RSMo 1949, V.A.M.S. The orders quashing the writs of garnishment were final judgments within the meaning of Section 512.020 RSMo 1949, V.A.M.S., which disposed of the issues between the appellant as plaintiff in the garnishment proceeding and the garnishees. Compare Frohoff v. Casualty Reciprocal Exchange, Mo.App. 113 S.W.2d 1026, wherein it was held that a judgment in a garnishment proceeding was a “final judgment” for the purpose of seeking a writ of error.

284 S.W.2d at 596.

Our own original appellate jurisdiction is the threshold consideration in every case.¹ Having found that that is lacking in this case, we close the file. Any examination of the trial court’s jurisdiction to render the original judgment (the absence of which would deprive us of derivative appellate jurisdiction) is gratuitous. This writer does not agree that the original judgment is a nullity, but thinks it goes beyond our proper appellate role to consider it, if not beyond our appellate jurisdiction.

Appeal dismissed.

SOMERVILLE, P.J., concurs.

CLARK, J., concurs in result and files separate concurring opinion.

1 . “[A]lthough where the reviewing court determines that it is without jurisdiction, it will decline to pass on the jurisdiction of the lower court.” 4 C.J.S. Appeal and Error, § 41 (1957). Cited: In re Sevilleta v. De La Joya Grant, Socorro County, 41 N.M. 305, 68 P.2d 160 (1937).

1 Mo.Digest 2d Appeal and Error, § 23 (1983).

First question for appellate court, in every case, is that of jurisdiction, first of itself, and then of the trial court. Highway Construction Company v. McClelland, 14 F.2d 406 (8th Cir.1926).

In McCormack v. Dunn, 106 S.W.2d 933 (Mo.App.1937), the court determined that the trial court’s order was not an appealable order, hence that the appeals court had no jurisdiction.

The court concluded: "Lacking jurisdiction, this court cannot on this appeal determine the question whether the order of April 27 [the order appealed from] was or was not void. The appeal is dismissed." Id. at 935-36.