Phelps County Bank v. Modern Security Life Insurance Co.

PER CURIAM: Plaintiff, as assignee of an insurance policy insuring the life of one Winfred Jenkins, sued defendant, the alleged insurer, for “judgment that said policy of insurance be adjudged to be in full force and effect and a valid and binding contract upon defendant.” Following trial to the court and after entering its “Findings of Fact, Conclusions of Law and Order,” the trial court on April 27, 1978, entered “Judgment”, the concluding paragraphs of which read: “WHEREFORE, It Is Ordered, adjudged and decreed by the Court that defendant’s policy of insurance number 118047 insuring the life of Winfred Jenkins is adjudged in full force and effect and a valid and binding contract upon defendant, conditioned upon payment by plaintiff to defendant of One Thousand Five Hundred Thirty-Nine Dollars ($1,539.00) for premiums for coverage through May 6, 1978. IT IS FURTHER ORDERED that the above described payment by plaintiff to defendant must be tendered by Cashier’s check through the Clerk of this Court within Thirty (30) days following the date of this Order. Costs taxed against defendant.” (Our emphasis). Defendant appealed from the foregoing “Judgment Order” under date of May 25, 1978. However, through a series of motions for extension of time granted in the trial — 747 — court and this court, the transcript on appeal (consisting of only 122 pages) was not filed here until August 3, 1979. “The right of appeal shall be as provided by law.” Rule 81.01, V.A.M.R. As apropos here, § 512.020, RSMo 1978, Y.A.M.S., gives an aggrieved party the right to appeal only “from any final judgment in the case,” and this court, sua sponte, is obligated to determine if such a judgment has been entered and, if not, to dismiss the appeal as premature. Frey v. Gabel, 574 S.W.2d 38, 39[1, 2] (Mo.App.1978). Nota bene that the purported judgment, supra, declaring the insurance policy to be in full force and effect, was expressly conditioned upon plaintiff, within 30 days thereafter, paying defendant $1,539 via a cashier’s check through the office of the circuit clerk. The conditions imposed were something plaintiff may or may not have done depending upon its personal desires, caprice or whim. The “judgment” of the court did not operate in praesenti for it was not to become operative unless and until the occurrence of the conditions stated therein. Ergo, the ordeg cannot be treated as a final judgment since it did not operate in prae-senti as a final determination of the issues. Ravenscroft v. Ravenscroft, 585 S.W.2d 270 (Mo.App., Western District 1979); Thompson v. Hodge, 348 S.W.2d 11, 14 (Mo.App.1961); Stone v. Boston, 218 S.W.2d 783, 787[6] (Mo.App.1949); Hays v. Dow, 237 Mo.App. 1, 7[3], 166 S.W.2d 309, 312[3] (1942); 4 C.J.S. Appeal and Error § 96, p. 276; 30A C.J.S. Equity § 584, p. 651; 49 C.J.S. Judgments § 73, pp. 192-193; cf. MFA Cooperative Ass’n of Ash Grove v. Elliott, 479 S.W.2d 129, 134[12-14] (Mo.App.1972). Wherefore, the cause is remanded for issuance of a final judgment dependent upon the compliance vel non of plaintiff relative to the conditions imposed by the order aforesaid. Upon entry of a final judgment by the court nisi, the aggrieved party may then appeal if desired. All concur, except PREWITT, J., dissents and files dissenting opinion.