Ferguson v. Comfort

• Citation: 139 S.W. 218,159 Mo.App. 30
• Parties: ELLA M. FERGUSON, Appellant, v. CHARLES D. COMFORT et al., Respondents
• Decision Date: 15 July 1911
• Court: Court of Appeal of Missouri (US)

139 S.W. 218

159 Mo.App. 30

ELLA M. FERGUSON, Appellant, v. CHARLES D. COMFORT et al., Respondents

Court of Appeals of Missouri, St. Louis

July 15, 1911

Appeal from St. Louis City Circuit Court.--Hon. George C. Hitchcock Judge.

TRANSFERRED TO SUPREME COURT.

Zachritz & Zachritz and Harmon J. Bliss for appellant.

Wm. F Smith and Henry Higginbotham for respondents.

NORTONI J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

NORTONI, J.

This is a suit in replevin. The finding and judgment were for defendants and plaintiff prosecutes the appeal.

The petition is in the usual form in an action of replevin and prays for the recovery of a lot of household furniture which it alleges to be of the value of $ 6000. The averment of the value of the property involved ($ 6000) is in accord with the statute on the subject of replevin (Sec. 2637, R. S. 1909). Besides this allegation of the value of the property, the petition prays a recovery of $ 5000 damages, as well, for the detention of the property and injuries thereto. There are two defendants and they answered separately. At the trial, the finding and judgment were to the effect that defendant Charles D. Comfort go hence without day and recover his costs and that defendant Nolte have and recover of plaintiff the possession of the property involved or, in lieu thereof, the sum of $ 6000, at which its value was fixed by the jury. A further recovery of one cent damages was awarded as well in favor of defendant Nolte against plaintiff. From this judgment plaintiff prosecutes an appeal to this court.

The question with which we are first confronted pertains to the jurisdiction of the court to review the appeal and proceedings had, for, though it is not raised by the parties the court should ascertain it. [Cable v. Duke, 208 Mo. 557, 106 S.W. 643.] Under the statute (Sec. 3937, R. S. 1909), the courts of appeals are given jurisdiction of appeals in all cases where the amount in dispute, exclusive of costs, shall not exceed the sum of $ 7500. It is to be observed that, according to the allegations of plaintiff's petition before us, a claim is made against defendants for the possession of property, which it is averred they wrongfully withhold, of the value of $ 6000, and furthermore of damages for such detention and injuries to the property in the amount of $ 5000, a total claim of $ 11,000. Defendants, though separately answering, claim the right to the property involved and aver the value thereof to be $ 6000. Furthermore, each defendant in his answer prays a return of the property, or that judgment be given in his favor against plaintiff and her sureties for such value of $ 6000, and further for damages in the sum of $ 5000 for the taking and detention of the property by plaintiff. It therefore appears that each of the parties to the controversy asserts a claim against the adverse party in the total amount of...