American Institute of Marketing Systems, Inc. v. Ford , 423 S.W.2d 852 ( 1968 )

ANDERSON, Presiding Judge.

In this case American Institute of Marketing Systems, Inc., a Corporation organized and existing under the laws of the State of Missouri, sued James R. Ford, a nonresident of the State of Missouri. The action was in two counts. Count One was for breach of contract, and Count Two was for the balance alleged to be due on a promissory note executed by defendant in favor of plaintiff. Suit was filed December 16, 1966.

On March 22, 1967, defendant filed the following motion:

“Comes now Sheldon D. Grand and enters his appearance for defendant herein, specially, and moves to quash service of summons and return thereon, for the reason that defendant James R. Ford is not a resident of the State of Missouri and has never been personally served with process herein.”

The Sheriff’s return is not set out in the transcript, but it is stated in appellant’s suggestions filed in this Court that said return was as follows:

“I hereby certify that I have served the within summons in the County of St. Louis, State of Missouri, by delivery on the 16th day of February, 1967, a copy of the summons and a copy of the petition as furnished by the Clerk, to James R. Ford, defendant herein, by serving George M. Kinder.

Frank Malone, Sheriff By /s/ F. R. Horsfall, Deputy”

Appellant further states in said suggestions that in the contract sued on it was agreed that George M. Kinder of St. Louis County would serve as agent for defendant-respondent for the receipt of process for the enforcement of the contract. This contract though made a part of the petition by reference has not been lodged in this Court by appellant.

The motion to quash, heretofore mentioned was argued and submitted to the trial court of May 20, 1967. Plaintiff-appellant submitted its brief in opposition to said motion at said time, and defendant was granted 20 days to file his memorandum in support thereof without waiving his special entry of appearance.

The next entry shown by the transcript reads as follows:

“THEREAFTER, on 30th day of June, 1967, the Court, having duly considered same, entered its order as follows :

“ ‘Defendant’s motion to quash service of summons sustained. Costs against plaintiff.’ ”

On July 10, 1967, plaintiff filed its notice of appeal to this Court. Said notice reads as follows:

“Notice is hereby given that American Institute of Marketing Systems, Inc., above named, hereby appeals to the St. Louis Court of Appeals from the judgment and order entered in this action on the 30th of June, 1967.”

Defendant-respondent has filed in this Court a motion to dismiss the appeal for the reason that the ruling of the Court from which the appeal was taken is not such a final judgment as will support an appeal. This motion should be and is sustained. Color Process Co. v. Northwest Screenprint Co., Mo., 417 S.W.2d 934; State ex rel. Anonymous v. Murphy, Mo.App., 354 S.W.2d 42; Tobin Asphalt Products v. Henwood, Mo.App., 199 S.W.2d 415.

The appeal is dismissed.

RUDDY and WOLFE, JJ., concur.