Lemonds v. Holmes, 41549

• Citation: 229 S.W.2d 691,360 Mo. 626
• Decision Date: 08 May 1950
• Docket Number: No. 41549,41549
• Parties: LEMONDS v. HOLMES et al.
• Court: United States State Supreme Court of Missouri

Page 691

229 S.W.2d 691

360 Mo. 626

LEMONDS v. HOLMES et al.

No. 41549.

Supreme Court of Missouri, en Banc.

May 8, 1950.

McHaney & McHaney, Hal H. McHancy, Flake L. McHaney, Kennett, for appellant-respondent.

Ward & Reeves, Caruthersville, for appellants Dewey Ramsey and Virgil Greenway.

Elbert L. Ford, Jones & Jones, Kennett, for respondents Carlmac Holmes and B. W. Young.

BOHLING, Commissioner.

Glenda Lemonds, by her next friend, C. J. Lemonds, sued Dewey Ramsey, Virgil Greenway, Carlmac Holmes and B. W. Young for $20,000 damages on account of personal injuries sustained in an automobile accident. The jury returned a verdict in favor of plaintiff and against Ramsey and Greenway, assessing plaintiff's damages at $5,000; and against plaintiff and in favor of Holmes and Young. After their respective motions for a new trial were overruled, Ramsey and Greenway appealed from the judgment in favor of plaintiff and plaintiff appealed from the judgment in favor of Young and Holmes. Said appeals were lodged here.

Plaintiff, not complaining of or appealing from her $5,000 judgment against Ramsey and Greenway, presents no issue respecting the amount of said judgment. The sole issue upon plaintiff's appeal is that plaintiff's motion for a directed verdict against Holmes and Young should have been sustained. This raises the question of our appellate jurisdiction. Brief mention of some of the underlying principles governing appellate jurisdiction may be of value.

We have jurisdiction 'in all cases where the amount in dispute, exclusive of costs, exceeds the sum of seventy-five hundred dollars.' Mo.Const.1945, Art. V, Sec. 3, Mo.R.S.A. Consult Mo.Const.1875, Art. VI, Sec. 12; Amend. of 1884, Sec. 3; Mo.R.S.1939, Vol. I, pp. 113c, 12oc; Sec. 2078, R.S.1939; Mo.R.S.A.

'The amount in dispute * * * is determined by the amount that actually remains in dispute between the parties on the appeal, and subject to the determination by the appellate court of the legal questions raised by the record.' State ex rel. Federal Lead Co. v. Reynolds, 245 Mo. 698, 703, 704, 151 S.W. 85, 86. It should not exceed the actual amount the claimant asks and for which the dispute could be settled. Cf. Schwyhart v. Barrett, 223 Mo. 497, 501, 122 S.W. 1049, 1050; Shroyer v. Missouri Livestock Comm. Co., 332 Mo. 1219, 1226, 61 S.W.2d 713, 715.

Being a court of limited appellate jurisdiction, our jurisdiction must affirmatively appear of record and is not to be left to chance, speculation or conjecture. Higgins v. Smith, 346 Mo. 1044, 144 S.W.2d 149, 151[5, 6]; McGregory v. Gaskill, 317 Mo. 122, 296 S.W. 123, 124[3, 4]; Platies v. Theodorow Baking Co., 334 Mo. 508, 66 S.W.2d 147, 148; Hanssen v. Karbe, Mo.Sup., 106 S.W.2d 415[2, 3].

Disputed amounts eliminated at the trial are eliminated in arriving at the amount in dispute. Bietsch v. Midwest Piping & Supply Co., Mo.Sup., 76 S.W.2d 1079; Pittsburg Bridge Co. v. St. Louis Transit Co., 205 Mo. 176, 103 S.W. 546; Esmar v. Haeussler, 341 Mo. 33, 34[1, 2], 106 S.W.2d 412[1-3].

Our jurisdiction depends on live issues, issues really in existence. Issues involving amounts in excess of $7,500 which stand abandoned on appeal have been considered colorable and meritless, and insufficient to vest appellate jurisdiction here. Ashbrook v. Willis, 338 Mo. 226, 89 S.W.2d 659, 660; Buddon Realty Co. v. Wallace, Mo.Sup., 188 S.W.2d 28, 29; Ewing v. Kansas City, 350 Mo. 1071, 169 S.W.2d 897, 900[3-5, 7]; kingshighway Presbyterian Church v. Sun Realty Co., 324 Mo. 510, 24 S.W.2d 108, 109. See 21 C.J.S., Courts, Sec. 409, p. 668.

We reserve to ourselves the right to pierce the shell of the pleadings, proofs, record, and judgment sufficiently far to determine that our proper jurisdiction is not infringed upon, or improper jurisdiction is not foisted upon us. State ex rel. Federal Lead Co. v. Reynolds, 245 Mo. 698, 704(d), 151 S.W. 85, 87(d); Vanderberg v. Kansas City, Mo., Gas Co., 199 Mo. 455, 458, 97 S.W. 908; Buddon Realty Co. v. Wallace, Mo.Sup., 188 S.W.2d 28, 30; Ashbrook v. Willis, 338 Mo. 226, 228, 89 S.W.2d 659, citing cases.

Plaintiff says she prayed for $20,000 damages and since there was a verdict in favor of Holmes and Young, the controversy between said litigants involves $20,000, citing Bunner v. Patti, Mo.App., 1937, 107 S.W.2d 143 ¹; and that appellate jurisdiction is not changed because a verdict was secured against codefendants Ramsey and Greenway for $5,000, citing Walsh v. Southwestern Bell Tel. Co., 1938, 331 Mo. 118, 52 S.W.2d 839, 840[1-3]. See the earlier case of Morton v. Southwestern T. & T. Co., 1920, 280 Mo. 360, 217 S.W. 831, 833, and the later cases of Atterbury v. Temple Stephens Co., 1944, 353 Mo. 5, 181 S.W.2d 659, 660; Brown v. Reorganization Inv. Co., 1942, 350 Mo. 407, 166 S.W.2d 476, 478; Ruehling v. Pickwick-Greyhound Lines, Inc., 1935, 337 Mo. 196, 85 S.W.2d 602.

The Walsh and Morton cases, supra, and cases there cited, are authority for the propositions that there can be only one final judgment, finally disposing of the case as to all parties, Sec. 1243, R.S.1939, Mo.R.S.A.; that a case remains one case on appeal notwithstanding two or more parties take an appeal from the judgment, and that when the appeal of any appellant vests jurisdiction here, the whole case must be heard here. Accordingly, we have taken jurisdiction where plaintiff has appealed from a judgment exonerating one defendant, although a codefendant was held liable for $7,500 or less, when plaintiff prayed for a judgment in excess of $7,500.

In Stotler v. Chicago & Alton Ry. Co., 1906, 200 Mo. 107, 149, 98 S.W. 509, 522, no case was made against one of several appealing tort-feasor judgment debtors, and the court held: 'We consider it established on reason and authority that we may reverse as to one tort-feasor and affirm the judgment as to others. * * * The earlier doctrine was to look on a judgment as an entirety, and to be reversed as to all, if reversed as to one.' Cf. State ex rel. Cunningham v. Haid, 328 Mo. 208, 40 S.W.2d 1048; Hatton v. Sidman, Mo.App., 169 S.W.2d 91, 99.

At the time of the Walsh and Morton cases, supra, as well as for sometime subsequent thereto, the amount in dispute was the amount prayed for in plaintiff's petition where plaintiff appealed from a judgment exonerating one of several tortfeasors although plaintiff secured a judgment for $7,500 or less against the other tort-feasors because, as held in the cases infra, if plaintiff's appeal disclosed error and there was no error respecting plaintiff's judgment against the other defendants it was necessary under the law as it then stood to remand the case for new trial, material to the instant issue, on the issue of plaintiff's damages as to all defendants, including any defendant previously held liable, and on the issue of liability as to the exonerated defendant only. This holding was on the theory that two trials would result in verdicts for different amounts, improper in a tort action against codefendants. Neal v. Curtis & Co. Mfg. Co., Div. I, 1931, 328 Mo. 389, 417 et seq., 41 S.W.2d 543, 556[23-34]; Barr v. Nafziger Baking Co., Div. I, 1931, 328 Mo. 423, 435, 436, 41 S.W.2d 559, 564[11-15].

However, the situation changed with the overruling of the Neal and the Barr cases, supra, in Hoelzel v. Chicago, R. I. & P. Ry. Co., Div. I, 1935, 337 Mo. 61, 76, 85 S.W.2d 126, 133[16, 17], 134. We there held that where error necessitating a new trial affected the rights of a defendant as to liability only and there was no error with respect to other defendants, 'the verdict as to both liability and amount of...