Breeden v. Hogan Transports11/15/2005
.W.3d 635, 638 (Mo.App. E.D. 1999); see also, Budd v. Budd, 157 S.W.3d 229, 230 (Mo.App. E.D. 2004); Arguin v. Arguin, 171 S.W.3d 116, 117 (Mo.App. E.D. 2005). As such, the motion extends the trial court's control over the default judgment from thirty days to ninety days from the day the motion is filed. Klaus, 4 S.W.3d at 637-8; see also, Popular Leasing, 57 S.W.3d at 877; Budd, 157 S.W.3d at 230; Arguin, 171 S.W.3d at 117-8. At the end of the ninety-day period, any "authorized after-trial motion" not ruled upon is automatically denied. Klaus, 4 S.W.3d at 637 citing Rule 78.06 and Rule 81.05; see also, Budd, 157 S.W.3d at 230; Arguin, 171 S.W.3d at 118.
In this case, Hogan Transports filed its motion to set aside on July 20, 2004 and its amended motion to set aside on July 22, 2004. Both of these filings came within thirty days of the entry of the default judgment, and, therefore, Hogan Transports' motions are treated as "authorized after-trial motions." The trial court's control over the default judgment extended no later than October 20, 2004, ninety days from the date Hogan Transports filed its amended motion, the last motion filed by Hogan Transports. As the trial court did not rule on Hogan Transports' motion within this ninety-day period, Hogan Transports' motion was automatically denied, and the trial court lost control of the default judgment, on October 20, 2004. Consequently, the trial court did not have jurisdiction on December 14, 2004 to rule on Hogan Transports' motion to set aside the default judgment, and its ruling is void. Budd, 157 S.W.3d at 230; see also, Arguin, 171 S.W.3d at 118.
We next address when this case became appealable. A prerequisite to appellate review is that there be a final judgment. Beckman v. Miceli Homes, Inc., 45 S.W.3d 533, 538 (Mo.App. E.D. 2001). A judgment is final for purposes of appeal only when it disposes of all the issues for all parties in the case and leaves nothing for further determination. Id.
On October 20, 2004, the date that Hogan Transports' motion was deemed overruled, defendant Holt remained in the underlying action as a party defendant. Thus, the case was not appealable at this time. See Bailey v. Innovative Management & Investment, Inc., 890 S.W.2d 648, 649 (Mo. banc 1994). "Even though a default judgment against one defendant in a multi-defendant case might be 'final' in virtually every other sense, it nevertheless is held in abeyance and does not truly become final until the claims against the other defending parties are disposed of." Beckmann, 45 S.W.3d at 539. The plaintiffs voluntarily dismissed Holt, the sole remaining defendant, on November 8, 2004. The plaintiffs' dismissal of Holt was effective as of November 8, 2004, the date it was filed. Freeman v. Leader National Insurance Co., 58 S.W.3d 590, 595 (Mo.App. E.D. 2001). At this point, there was a final judgment and the case became appealable. See Bailey, 890 S.W.2d at 649; Magee v. Blue Ridge Professional Building, Co., Inc., 821 S.W.2d 839, 842 (Mo. banc 1991); Snelling v. Masonic Home of Missouri, 904 S.W.2d 251, 252-3 (Mo.App. E.D. 1995). Hogan Transports then had forty days, until December 18, 2004, to file its notice of appeal. See Bailey, 890 S.W.2d at 650. Hogan Transports, however, did not file its notice of appeal until January 20, 2005. As such, its notice of appeal was not timely filed. The timely filing of a notice of appeal is a jurisdictional requirement. Popular Leasing , 57 S.W.3d at 877. If a notice of appeal is untimely, this Court is without jurisdiction and must dismiss the appeal. Id.
The plaintiffs' motion to dismiss is granted. Because Hogan Transports' notice of appeal was untimely filed, we dismiss the appeal for lack of j
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