Barker Phillips, Inc. v. Caviness

PER CURIAM: Default judgment was had by plaintiff against defendant on an account stated for $11,596.04. Because defendant’s appeal was not timely filed we have no jurisdiction and must dismiss the appeal. Judgment was entered October 9, 1979. On October 17, 1979, defendant filed his motion to set aside the default judgment and also a motion for new trial. The motion to set aside the default judgment was overruled by the court on December 11, 1979. Although the court entered an order purporting to overrule the motion for new trial on February 12, 1980, this motion was deemed overruled 90 days from the date of filing by Rule 78.06, V.A.M.R. Thus, the entry of February 12, 1980, was a nullity because the court had no jurisdiction. Defendant’s notice of appeal was due no later than- ten days from January 15, 1980, [Rule 81.04, V.A.M.R.], the date his motion for new trial was deemed denied by Rule 78.06 and final by Rule 81.05, V.A.M.R. The notice of appeal was filed February 21, 1980, twenty-seven days late. The appeal is dismissed. All concur.