Cox v. Barker

• Decision Date: 14 June 1899
• Citation: 51 S.W. 1051,150 Mo. 424
• Parties: COX v. BARKER et al.
• Court: Missouri Supreme Court

51 S.W. 1051

150 Mo. 424

COX v. BARKER et al.

Supreme Court of Missouri, Division No. 1.

June 14, 1899.

SUPREME COURTS — JURISDICTION — TITLE TO REALTY — TRESPASS ON LAND.

In an action for trespass on land by tearing down and carrying away a partition fence, though the title to realty may be incidentally involved, yet, since the judgment could be satisfied by a money payment without affecting the title, the case did not involve the title to realty, so that it would fall within the jurisdiction of the supreme court under Const. art. 6, § 12.

Case certified from St. Louis court of appeals.

Action by Nicholas J. Cox against John R.

Barker and others. There was a judgment for defendants, and plaintiff appealed to the St. Louis court of appeals, which transferred the case to the supreme court. Retransferred to the court of appeals.

This case was certified to this court by the St. Louis court of appeals on the ground that the title to real estate is involved. It is an action of trespass on land. The parties are owners of adjoining parcels of land, and for many years maintained a partition fence. In 1884 the defendants removed a portion of the fence. The plaintiff replaced it, but placed it a few feet further west of the line of the old fence. Defendants notified plaintiff that he was putting the fence on their (defendants') land, and that, if a survey proved this to be true, they would hold the fence. A subsequent survey proved defendants' claim was correct, and they thereupon tore the fence down and carried away the materials. Plaintiff then instituted this action, claiming $25 for the materials and $50 damages for the trespass. The trial court found for the defendants, and plaintiff appealed to the St. Louis court of appeals. The court of appeals held that as the liability of the defendants depended upon the ownership of the land, and as "it was competent for defendants to show in defense of the action a superior title and right of possession in themselves" (Fuhr v. Dean, 26 Mo. 116; More v. Perry, 61 Mo. 174), the title to real estate was involved, and hence this court alone had jurisdiction, and therefore certified the case here.

Smoot, Mudd & Wagner, for appellant. John M. Jayne, for respondent.

MARSHALL, J. (after stating the facts).

In Price v. Blankenship, 144 Mo. 203, 45 S. W. 1123, this court reviewed the question here involved, and held that, although the title to real estate may be incidentally, collaterally, or necessarily inquired...