Hunter v. Hunter

• Decision Date: 11 November 1946
• Docket Number: 39803
• Citation: 197 S.W.2d 299,355 Mo. 599
• Parties: Albert Hunter v. H. Clay Hunter, Appellant
• Court: Missouri Supreme Court

197 S.W.2d 299

355 Mo. 599

Albert Hunter v. H. Clay Hunter, Appellant

No. 39803

Supreme Court of Missouri

November 11, 1946

Appeal from New Madrid Circuit Court; Hon. Louis H. Schult Judge.

Transferred to springfield court of appeals.

R F. Baynes for appellant.

Harry H. Bock and Edward F. Sharp for respondent.

Bohling C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

This is an action instituted by Albert Hunter against H. Clay Hunter, in two counts, first, to determine title and, second in ejectment and for damages. The pleaded case involved adjoining parts of two lots in New Madrid, Missouri. For convenience we designate them as the "north tract" and the "south tract." The counts in plaintiff's petition alleged plaintiff's causes of action in general terms. Defendant's answer denied plaintiff's plea of title and pleaded, in effect, that plaintiff had a life estate in the north tract, with the fee in remainder in defendant, and that defendant owned the south tract in fee, free from any claim of plaintiff. Defendant's answer to plaintiff's count in ejectment conformed to his answer to the title count. The litigants are brothers, deriving title under their mother's will, which devised what is "known as the Rexall Drug Store building" in New Madrid to Albert for life, with remainder in fee to H. Clay Hunter. The will also named H. Clay Hunter as residuary devisee and as such he claims the fee to the south tract. Two adjoining storerooms are on the two tracts; the Rexall drug store occupying the north room and a restaurant occupying the south room. The trial narrowed the controversy to whether Albert's life estate embraced this south room, the land occupied by the restaurant, by reason of the two storerooms constituting one building; that is, the "Rexall Drug Store building" mentioned in the mother's will. The judgment of the trial court, entered November 23, 1945, found the issues for plaintiff and against defendant, and on the first count, adjudged that plaintiff owned a life estate in the whole of the real estate and that, subject to said life estate, defendant owned the fee simple title; and, on the second count, adjudged that plaintiff was entitled to recover possession of the "south" room of the building, together with $ 520 damages and $ 40 monthly until restored to possession. Defendant perfected his appeal to this court. Thereafter, on September 4, 1946, plaintiff died and his administrator filed herein on September 18, 1946, suggestions of his death and application for entry of his appearance as "successor to respondent."

This court has jurisdiction of appeals involving the title to real estate (consult Const. Mo. 1945, Art. V, Sec. 3; Const. Mo., 1875, Art. VI, Sec. 12, Amend. 1884, Sec. 5); including judgments in which the determination of title to real estate is void on account of being beyond the jurisdiction of the trial court (Watts v. Watts, 304 Mo. 361, 365, 263 S.W. 421, 422[4]; State ex rel. Place v. Bland, 353 Mo. 639, 648[1], 183 S.W. 2d 878, 884[3]; Riley v. La Font (Mo.), 174 S.W. 2d 857[1]). But title to real estate must be directly and not merely incidentally or collaterally involved to vest appellate jurisdiction here. Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 952, 953, 2 S.W. 2d 771, 774[5, 7, 8]; quoted in Re Ellis' Estate (Mo.), 127 S.W. 2d 441, 442[1]. The instant judgment on the quiet title count directly involved and adjudicated a title controversy with respect to the south tract. However, an examination of the record discloses that the ejectment count was an ordinary action in ejectment wherein neither litigant asked an adjudication respecting the title and that the judgment thereon conformed to the pleadings in this respect. In these circumstances title was only incidentally or collaterally involved in the ejectment branch of the litigation and did not vest appellate jurisdiction here. Gibbany v. Walker, 342 Mo. 156, 113 S.W. 2d 792. With the death of plaintiff, defendant comes into the undisputed fee simple title to the whole of the real estate and the dispute directly involving the title to the portion occupied by the "south storeroom" has ceased to exist in a jurisdictional sense although it may remain incidentally in the ejectment count insofar as title may have an effect on the issue of possession and damages connected therewith. This presents a question with respect to the proper court for review; although not briefed by the litigants.

Cases are to the effect that appellate jurisdiction over the subject matter is determined upon the record in the trial court at the time the appeal is granted and that nothing subsequently occurring will defeat or confer jurisdiction on this court. State ex rel. Brenner v. Trimble, 326 Mo. 702, 709, 32 S.W. 2d 760, 762[2], quoting Little River Drain. Dist. v. Houck, 282 Mo. 458, 461, 222 S.W 384, 385; Platies v. Theodorow Bakery Co., 334 Mo. 508, 511, 66 S.W. 2d 147, 148; Hardt v. City Ice & Fuel Co., 340 Mo. 721, 722, 102 S.W. 2d 592, 593. This statement of the rule may be too broad if taken literally; as, for instance, appeals lodged here on the ground a constitutional question is involved are transferred where the constitutional question stands ruled and determined (City of Marshfield ex rel. v. Brown, 337 Mo. 1136, 1139, 88 S.W. 2d 339, 340[3]), although in instances wherein the constitutional question had not been determined at the time of the appeal but was determined in another case pending the appeal, we have retained jurisdiction (McFall v. Barton-Mansfield Co., 333 Mo. 110, 116[4], 61 S.W. 2d 911, 912[2]; Privitt v. St. Louis-S. F. Ry. Co. (Mo.), 300 S.W. 726, 727[1]). And we transfer appeals to the proper court of appeals where the constitutional question raised in the trial court is not...