Buddon Realty Co. v. Wallace

• Decision Date: 04 June 1945
• Docket Number: No. 39185.,39185.
• Citation: 188 S.W.2d 28
• Parties: BUDDON REALTY CO. et al. v. WALLACE.
• Court: Missouri Supreme Court

188 S.W.2d 28

BUDDON REALTY CO. et al. v. WALLACE.

No. 39185.

Supreme Court of Missouri, Division No. 1.

June 4, 1945.

Appeal from St. Louis Circuit Court; Edward M. Ruddy, Judge.

Action by Buddon Realty Company and others against S. Mayner Wallace, as administrator d.b.n.c.t.n.a. of the estate of Claude A. Lovejoy, deceased, to recover an alleged indebtedness of decedent's estate to plaintiff and for cancellation of a lease, wherein defendant filed a counterclaim for declaratory judgment and for other relief. From a judgment dismissing plaintiffs' petition and sustaining defendant's counterclaim, plaintiffs appeal.

Case transferred to St.Louis Court of Appeals.

Bryan, Cave, McPheeters & McRoberts, of St. Louis, for appellants.

S. Mayner Wallace, of St. Louis, respondent, pro se.

GANTT, Judge.

On February 18, 1939, the plaintiffs leased the Majestic Hotel property in St. Louis, including furnishings, furniture and equipment, to Claude A. Lovejoy, for a term of fifteen years beginning on March 1, 1939. He went into possession and so continued until April 19, 1942, on which date he died.

On May 4, 1942, the defendant was appointed administrator d.b.n.c.t.n.a. of the estate of Claude A. Lovejoy, deceased, by the probate court of the City of St. Louis. Thereupon he qualified and entered into possession of the property, claiming the leasehold as an asset of the estate of the decedent.

On June 4, 1942, plaintiffs demanded possession of the property. On defendant's refusal of possession, plaintiff instituted this suit. The petition alleged that Lovejoy had defaulted in the performance of certain requirements of the lease and for that reason the estate was indebted to plaintiffs in the sum of $66,500. It further alleged that the lease terminated upon the death of Lovejoy. Plaintiffs prayed for judgment in the sum of $66,500 and for cancellation of the lease.

The answer of the defendant administrator was a general denial with a plea of waiver and estoppel as the result of certain alleged facts. He also pleaded a counterclaim seeking a declaratory judgment adjudging the validity of his title as administrator to the unexpired term of the leasehold and adjudging his authority to sell the same in the administration of the estate and for general relief. The reply was a general denial. The judgment dismissed plaintiffs' petition and sustained defendant's counterclaim. Plaintiffs appealed.

Defendant challenges the appellate jurisdiction of this court and moves for a transfer to the court of appeals.

In plaintiffs' brief it is stated that the title to real estate is involved and that the amount in dispute, exclusive of costs, exceeds the sum of $7500, and for said reasons this court has appellate jurisdiction. On the oral argument plaintiffs admitted that the title to real estate was not involved. It follows that appellate jurisdiction must be determined by the amount in dispute as shown by the record.

The rule follows:

"If a plaintiff is cast on demurrer to his petition, it would seem that the amount stated in the petition controls the jurisdiction on appeal; but 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...