Ashbrook v. Willis
| Decision Date | 11 January 1937 |
| Citation | 100 S.W.2d 943,231 Mo.App. 460 |
| Parties | W. R. ASHBROOK, RESPONDENT, v. WILSON WILLIS, ETC., APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Jackson County.--Hon. Daniel E. Bird Judge.
AFFIRMED AND CAUSE REMANDED (with directions).
Action affirmed and cause remanded.
Cowgill & Popham and John F. Cook for respondent.
Harding Murphy & Tucker for appellant.
This is an action for damages arising out of an automobile collision in the intersection of Valley Road and 63rd Streets in Kansas City, Missouri.
The plaintiff alleges that when he was in the intersection of Valley Road and 63rd Street and proceeding westwardly on 63rd Street, the defendant's servant, while driving defendant's automobile truck on Valley Road in a northern direction, so carelessly and negligently operated said automobile truck as to cause same to come into violent collision with plaintiff, permanently injuring him.
Plaintiff sued in two counts, the first count for personal injuries in the sum of $ 10,000 and in the second count for damages to his car in sum of $ 1056.30, all alleged as direct result of aforesaid negligence of defendant.
The defendant answered as to both counts by a general denial and plea of contributory negligence.
The defendant further pleading by way of counterclaim alleges, that at said time and place the plaintiff so negligently and carelessly operated his automobile as to thereby cause same to come into violent collision with defendant's car and thereby directly cause the collision.
Defendant further alleges that directly due to plaintiff's negligence aforesaid, he was caused property damage in the total amount of $ 2733 for which he prays judgment.
Plaintiff filed reply of general denial as to defendant's answer and counterclaim.
Trial was by jury resulting in a verdict for plaintiff for $ 500 damages for personal injuries and a verdict for $ 500 for defendant on his counterclaim.
Judgment was entered in accordance with the verdict of the jury and plaintiff filed motion for new trial.
The trial court granted a new trial on the following expressed reason, to-wit: "Plaintiff's motion for a new trial sustained because of error in giving defendant's instruction No. 5, and excepted to by defendant."
The defendant appealed from the order granting a new trial and as the amount of damage alleged to have been sustained by plaintiff and for which he asked judgment exceeded the amount of $ 7500 the appeal was granted to the Supreme Court of Missouri.
The question of plaintiff's action being in two counts and only one transaction being raised in the Supreme Court and the second count was withdrawn.
While this case was pending in the Supreme Court, questions involving the rules of that court as to filing abstract of records were raised, but not disposed of for reasons that will later appear.
By action of Division No. 2, of the Supreme Court, at its September Term, this cause was transferred to this court by mandate.
In the opinion with the mandate herein the Supreme Court says:
The opinion further says:
"Whenever necessary to preserve the constitutional integrity of this court, we have reserved 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 by design, inadvertence or mere colorable--and not real--amounts."
The opinion quotes from Vanderberg v. Kansas City Mo. Gas Co., 199 Mo. 455, 97 S.W. 908, as follows:
". . . where, as in this case, the whole case of plaintiff is presented below and becomes a part of the record through a bill of exceptions, this court has hesitated to give to a plaintiff the whimsical and unregulated power to control its jurisdiction by a mere stroke of his pen in his petition, and we have reserved to ourselves the right in emergency to control the question of jurisdiction by looking into the whole record far enough to do so, by seeing to it that jurisdiction is not foisted upon us by a mere paper or colorable amount in dispute, but is regulated by the real amount in dispute on appeal as disclosed by the entire record."
In the conclusion of the opinion this language appears:
"Under the authorities supra any inadequacy of plaintiff's damages is not presented for review; and from counsel's failure to reason said issue here, we may, and do, conclude it to be no issue to reason--an issue of color only and not of substance--and insufficient to vest appellate jurisdiction in this court."
We have set forth the language above, as found in the opinion with the mandate, for the reason that the same presents a terse statement of modern trend of the judiciary to deal with substance rather than legal fiction and to get at the meat of the controversy, if need be, by the use of common sense method that has been too often barred from judicial reasoning. Such, on a judicial bill of fare, might well be expressed as "a la carte" Brandeis.
The expressions used by the court in transferring the case here, calls to mind the expression, "Extravangantes," as used in the canon law to express that the matter was out of the canonical law. Otherwise, expressed, "quasi vagantes extra corpus juris," which being interpreted to suit this occasion means, that litigants cannot confer jurisdiction by means of unreasonable and extravagant claims of amount due.
To this court there is a further significance, to-wit: The jurisdiction of this court can be increased by mandate as well as by legislative enactment.
As to the questions raised in the Supreme Court, concerning time and notice of filing...
To continue reading
Request your trial
-
Miller v. Kansas City Public Service Co.
... ... Kurn, 348 Mo. 908, 156 S.W.2d 638, 639; Elkin v. St ... Louis Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; ... Ashbrook v. Willis, 231 Mo.App. 460, 100 S.W.2d 943, ... 945; Putnam v. Universal Granite Works, 122 S.W.2d ... 389, 391. (2) Instruction "1" is ... ...
- Reynolds v. National Cas. Co.