Burroughs v. Lasswell, 32223.

• Decision Date: 08 February 1935
• Docket Number: No. 32223.,32223.
• Court: Missouri Supreme Court
• Parties: J.N. BURROUGHS, Appellant, v. S.R. LASSWELL and J.I. LASSWELL.

79 S.W.2d 107

J.N. BURROUGHS, Appellant, v. S.R. LASSWELL and J.I. LASSWELL.

No. 32223.

Supreme Court of Missouri.

Division One, February 8, 1935.

Appeal from Texas Circuit Court. — Hon. J.H. Bowron, Judge.

TRANSFERRED TO THE SPRINGFIELD COURT OF APPEALS.

Geo. T. Humphries and H.D. Green for appellant.

Hiett, Lamar & Covert and M.E. Morrow for respondents.

FERGUSON, C.

This suit was originally filed in the Circuit Court of Howell County in February, 1930. At the June Term, 1930, of that court defendants appeared and filed a joint demurrer to the original bill or petition. Afterwards, upon application of defendants, the venue of the cause was changed to the Circuit Court of Ripley County and thereafter, in December, 1930, the cause was sent, upon application of plaintiff, to the Circuit Court of Texas County. On the first day of June, 1931, plaintiff filed an amended petition in that court. On June 2, 1931, defendants filed a joint demurrer thereto which was, by the court, sustained on June 6, 1931; plaintiff refused to further plead, judgment was entered for defendants and plaintiff appealed. The appeal was sent to the Springfield Court of Appeals but that court transferred the cause here on the ground that the "amount involved herein exceeds the jurisdiction" of the Court of Appeals.

[1] No other ground of our appellate jurisdiction being present it appears that if we have jurisdiction of the appeal it is solely on the ground that the "amount in dispute," exclusive of costs, exceeds the sum of seventy-five hundred dollars. Section 12, Article 6; Section 3, Amendment 1884, Constitution of Missouri and Section 1914, Revised Statutes 1929. While our jurisdiction has not been challenged by the parties nevertheless it is our first duty to inquire and determine whether we have jurisdiction and, as we have repeatedly said, jurisdiction of an appeal cannot be conferred by acquiescence of the parties. "Speculation or conjecture as to the amount in dispute cannot be indulged in for the purpose of determining jurisdiction... . It must affirmatively appear from the record in the cause." [City of Doniphan v. Cantley, 330 Mo. 639, 50 S.W. (2d) 658, and cases there cited; Consolidated School District v. Gower Bank (Mo. App.), 53 S.W. (2d) 280; Stipp v. Bailey, 331 Mo. 374, 53 S.W. (2d) 872.] The amended petition, to which the demurrer was sustained, constitutes the record to which we must look in this instance and unless it affirmatively appears therefrom that the amount in dispute, exclusive of costs, exceeds the sum of seventy-five hundred dollars we do not have jurisdiction of this appeal. This requires a general summary of the petition.

It appears from the petition that the defendants S.R. Lasswell and J.I. Lasswell are brothers. The petition first alleges, that "on the ____ day of ____, 1927," plaintiff and the defendant, S.R. Lasswell, "were as co-partners the owners of an oil and gas lease and of an oil well on" each of two separately described tracts of land in Okmulgee County, Oklahoma; "that in pursuance of their agreements made prior to the date aforesaid plaintiff and the said S.R. Lasswell did acquire a lease" on said lands "and did by their joint means, labor and efforts develop an oil well on each of said tracts and put the same in a state of production and, so long as the same were producing oil, the output was sold to the Prairie Oil and Gas Company;" that "prior to the filing of this action the said oil wells had ceased to produce oil, but there was located on the said lands certain personal property, consisting of casing, tubing, jacks, pump engines, oil tanks, water tanks and other machinery, appliances and equipment used on and about said leases, all of which belonged to and was the property of said co-partnership;" that "said property was of the value of $4000;" that "the defendants conspiring and contriving together to cheat and defraud plaintiff and to deprive him of his interest in said property and his rights to have the same held and administered as the property of the said partnership, took charge of all of said property and converted same to their own use;" that "in further pursuance of the joint wrongs, frauds and conspiracies of defendants to cheat and defraud the plaintiff out of all his rights and...