Mulik v. Jorganian

• Decision Date: 04 September 1930
• Parties: Steve Mulik, Amelia Mulik and Frank Dulkan v. Sampad Jorganian, Appellant
• Court: Missouri Supreme Court

30 S.W.2d 998

326 Mo. 106

Steve Mulik, Amelia Mulik and Frank Dulkan v. Sampad Jorganian, Appellant

Supreme Court of Missouri

September 4, 1930

Appeal from Buchanan Circuit Court; Hon. L. A. Vories Judge.

Transferred to Kansas City Court of Appeals.

Louis Kranitz for appellant.

OPINION

Atwood, J.

This is a proceeding in equity instituted by Steve Mulik, Amelia Mulik and Frank Dulkan, as plaintiffs, against Sampad Jorganian, as defendant, to have a garage building alleged to have been placed by defendant in an alleged public alley adjoining a residence lot owned by him, declared a public nuisance and removed, and to restrain defendant from interfering with the use of said alley by plaintiffs and the general public. Plaintiffs alleged that the public was deprived of the use of said alley and that they were deprived of access to the rear of their residence lots adjoining defendant's lot by reason of the location of said building, and that plaintiffs were especially damaged thereby. Defendant's answer was a general denial coupled with a special denial that he was the owner of the real estate as alleged in plaintiffs' petition. Judgment was for plaintiffs, declaring the building as located a public nuisance and ordering its abatement. From this judgment defendant has appealed.

No oral arguments were made here and respondent has filed no brief. Counsel for appellant does not question our jurisdiction, but we do so of our own motion. Presumably the appeal was allowed to this court on the theory that title to real estate is involved within the meaning of Section 12, Article VI, Constitution of Missouri. In Nettleton Bank v. Estate of McGaughey, 318 Mo. 948, 954, 2 S.W.2d 771, 775, after reviewing many cases we said that title to real estate must be in issue directly and that it is the judgment sought or rendered, in each instance, which is determinative of jurisdiction.

Looking to the prayer of the petition for the judgment sought we find that it reads as follows:

"WHEREFORE, plaintiffs pray that said building in said alley be declared a public nuisance, that the defendant be ordered to remove said building from said alley forthwith, and that he be restrained from interfering with the public use of said alley, and plaintiffs pray for all equitable relief, and that they recover their costs herein."

Obviously the only judgment sought is the declaration and abatement of an alleged public nuisance, and injunctive relief. There is no request for an adjudication of title to real estate, or suggestion that such is in issue.

As for the judgment rendered, the record shows entry of the finding and judgment of the trial court as follows:

"Now on the 7th day of June, 1927, and on the 31st day of May Term of said Court, this cause having heretofore been taken under advisement and being duly considered by the court and the court upon due consideration finds all the issues in favor of the plaintiffs and against the defendant; that the West Ten Feet of Lot Ten (10), in Block Sixteen (16), in St. George Addition to the City of St. Joseph, in Buchanan County Missouri, was set out and dedicated to public use as an alley and public highway, about twenty-eight years ago, by the then owner of said lot, that said alley has been used as a public highway for more than twenty-seven years next prior to...