City of St. Charles v. De Sherlia, 45549
| Citation | 303 S.W.2d 32 |
| Decision Date | 10 June 1957 |
| Docket Number | No. 2,No. 45549,45549,2 |
| Parties | CITY OF ST. CHARLES, Missouri, a Municipal Corporation, Respondent, v. Harold DE SHERLIA and Gertrude DeSherlia, Apellants |
| Court | United States State Supreme Court of Missouri |
Robert V. Niedner, Paul F. Neidner, St. Charles, for appellants.
Andrew H. McColloch, St. Charles, for respondent.
STOCKARD, Commissioner.
The is an appeal by the defendants in the trial court from an order granting a new trial in an ejectment suit brought against them by the City of St. Charles.
If jurisdiction of this appeal is in this court it is only because title to real estate is involved within the meaning of Article V, Section 3, Constitution of Missouri, V.A.M.S. At oral argument, counsel for appellant, with commendable candor, opened his argument by stating that subsequent to the filing of his brief he had examined further the question of jurisdiction and he entertained some doubt if the appeal should be here or in the St. Louis Court of Appeals. However, whether or not the issue is raised by the parties, it is our duty to determine the question of jurisdiction. Blair v. Hamilton, Mo.Sup., 292 S.W.2d 578; Fisher v. Lavelock, Mo.Sup., 282 S.W.2d 557.
Plaintiff, the City of St. Charles, alleged in its petition that in 1910 Annie Dallmeyer conveyed a tract of land to William Bredenbeck and Amanda Bredenbeck, and by that deed also dedicated to the public for a street a strip of land 25 feet in width and 350 feet in length which was then and is now located within the City of St. Charles; that said street was opened and used for street purposes by the public; that title thereto became vested in said City for the use of the public for street purposes; and that the defendants have blocked and are now blocking the use of the street. Plaintiff then prayed 'for judgment against defendants, Harold DeSherlia and Gertrude DeSherlia, and for possession of the strip of ground and public street particularly described in paragraph No. 3 of this petition and for the costs of this action and for such other and further relief as the court may deem just and proper in the premises.'
By their answer, defendants admitted the execution of the deed by Annie Dallmeyer, but denied that thereby any street or alley was opened, dedicated or created. They admitted that they were and are in possession of the strip of land, and alleged that they entered upon the land 'more than ten years ago and have been in open, notorious, hostile, adverse, continuous and exclusive possession of said strip ever since said time.' The defendants then prayed that 'having fully answered defendants pray that they may be dismissed with their costs.'
Defendants also filed what they termed a 'cross action,' which in fact was a counterclaim, in which they alleged that they entered upon the strip of land in question on March 15, 1941, and 'that they have held open, notorious, adverse, uninterrupted, hostile, exclusive possession of said strip ever since the date of entry being more than ten years; that they are now the exclusive owners of said strip of land.' After then alleging that the City was making some claim of interest in the land, they prayed that the trial court 'try and determine the title to said strip of land and for an order and decree of this court that they are the rightful, legal owners of said strip of land.' Plaintiff filed a reply to the counterclaim which denied the title of defendants by adverse possession, and again asked 'for the relief prayed for in plaintiff's petition.'
Trial of the suit in ejectment was had to a jury, and trial of the issues in the counterclaim was to the court. The jury returned a verdict against the City and in favor of the defendants in the ejectment suit. The trial court entered the following judgment:
Defendants filed no after-trial motions and took no appeal. Therefore, the judgment pertaining to the counterclaim, or that defendants do not have title to the strip of land by reason of adverse possession, is final and is the law of this case. However, plaintiff filed a motion to set aside the verdict in the ejectment suit and enter judgment in its favor, or in the alternative, for a new trial. The trial court sustained the alternative motion for a new trial and assigned as reasons therefor that the verdict was against the weight of the evidence and that the instructions given at the request of the defendants were erroneous. Defendants then appealed to this court from 'the judgment and order granting a new trial.'
Ejectment is a possessory action, Townsend v. Lawrence, Mo.Sup., 262 S.W.2d 55, and 'in an ordinary, simple, straight action in ejectment in...
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...the Supreme Court Rules of Civil Procedure, V.A.M.R., and all references to statutes are to RSMo 1959, V.A.M.S.2 City of St. Charles v. DeSherlia, Mo., 303 S.W.2d 32, 34(2); Townsend v. Lawrence, Mo., 262 S.W.2d 55; State ex rel. Edie v. Shain, 348 Mo. 119, 122, 152 S.W.2d 174, 176(2); Domy......
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