Cable v. Duke

• Decision Date: 24 December 1907
• Citation: 106 S.W. 643,208 Mo. 557
• Parties: CABLE et al. v. DUKE et al., Appellants
• Court: Missouri Supreme Court

106 S.W. 643

208 Mo. 557

CABLE et al. v. DUKE et al., Appellants

Supreme Court of Missouri, First Division

December 24, 1907

Appeal from Vernon Circuit Court. -- Hon. H. C. Timmonds, Judge.

Transferred to Kansas City Court of Appeals.

Thos J Smith for appellants.

O. A Lucas and T. W. Silvers for respondents.

OPINION

LAMM J.

Plaintiffs brought replevin for 208 head of cattle, alleged to be of the value of $ 6,500, praying damages for their unlawful and wrongful detention in the sum of $ 1,000; and, recovering below (without damages), defendants appeal to this court.

No question of jurisdiction is put into the case by either party litigant; but it is axiomatic that a question of jurisdiction may be raised here or below; and it may be brought in by a litigant, or may obtrude itself on the notice of the court and be considered sua sponte. [May v. Jarvis-Conklin Mortgage Trust Co., 138 Mo. 447, 40 S.W. 122; City of Tarkio v. Clark, 186 Mo. 285, 85 S.W. 329.]

In the absence of a constitutional or Federal question there is only one allowable theory upon which to base our jurisdiction of this appeal, to-wit, "the amount in dispute." [Vanderberg v. Gas Co., 199 Mo. 455, 97 S.W. 908.] The question, then, is what is the amount in dispute in the case at bar? Attending to that, there were three defendants -- two of them answering jointly, thus:

"Now come the defendants, W. H. H. Duke and F. M. Woods, and for their separate answer to the plaintiffs' petition herein admit that at the time of the institution of this suit they were in the possession of the cattle sued for.

"But they deny each and every other allegation in said petition contained, and especially deny that they, or either of them, were at the bringing of this suit, or prior thereto, partners of their codefendant, W. C. Woods.

"And having fully answered, they ask that plaintiffs' petition be dismissed and that they have judgment for their costs."

The foregoing answer was verified by affidavit.

The other defendant filed the following answer, also verified by affidavit:

"Now comes the defendant, W. C. Woods, and for his separate answer to the petition of the plaintiffs denies that at the time of the institution of this suit, or at any other time, he was a partner of his co-defendants as alleged in the plaintiffs' petition, or otherwise. And further denies that at the time of the institution of this suit he was in possession of the cattle sued for, or any part of them.

"Wherefore he asks judgment against the plaintiff for his costs in this behalf."

The cause was tried on the foregoing paper issues. It is disclosed in the evidence that plaintiffs claim possession on a defaulted chattel mortgage, executed on the cattle in controversy by defendant W. C. Woods to them to secure money advanced. The petition averred that W. C. Woods and his co-defendants were partners. The answers, as seen, put in issue the allegation of partnership and otherwise were general denials, barring an admission of the allegation of possession in Duke and F. M. Woods. The bone of contention uncovered at the trial is an alleged agister's lien asserted by defendants. Defendants' case proceeds on the theory the mortgagor, a few months after executing the mortgage, and while the cattle were pasturing on lands demised by lease to all three defendants jointly, transferred his interest in the leasehold estate and the cattle-pasturing business to his co-defendant, F. M. Woods, his father (possibly as collateral security); and that at the time the replevin suit was brought he had no interest in the pasturage bill or in the claimed agister's lien, but that said bill and lien belonged to his co-defendants.

In a nutshell, plaintiffs' theory was that the agister's lien had no existence in law or fact.

There are other questions in the case, not related to the question of jurisdiction needing no present attention.

The court gave for plaintiffs the following instruction:

"The court instructs the jury that under the pleadings and evidence in this case the defendants have no legal lien on the cattle in controversy for pasturage. Therefore, if you shall believe from the evidence that the said cattle are described in and covered by the chattel mortgage introduced in evidence, you should return a verdict in favor of plaintiff."

And refused mandatory instructions to find for defendants: first, on plaintiffs' own evidence; second, on all the evidence of the case; and then refused eleven other instructions drafted on various theories of defendants' learned counsel not germane to the present discussion.

The jury returned the following general verdict for plaintiffs: "We, the jury, find the issues in favor of the plaintiffs." Upon that verdict, the material part of the judgment follows:

"And plaintiffs, having heretofore voluntarily dismissed their suit as to all cattle sued for except the 193 head taken by the sheriff under the writ of replevin and by him delivered to them, and it appearing that plaintiffs are still in possession of said 193 head of cattle, it is therefore, by the court, considered and adjudged that plaintiffs retain the possession of said 193 head of cattle, and that they have and recover of and from the defendants their costs in this...