Feste v. Newman

• Decision Date: 04 June 1963
• Docket Number: No. 49143,49143
• Parties: Elizabeth FESTE, Appellant-Respondent, v. Billy M. NEWMAN, Respondent, and Jean Denton, Appellant.
• Court: Missouri Supreme Court

Page 713

368 S.W.2d 713

Elizabeth FESTE, Appellant-Respondent, v. Billy M. NEWMAN, Respondent, and Jean Denton, Appellant.

No. 49143.

Supreme Court of Missouri, En Banc.

June 4, 1963.

David G. Dempsey, Richard B. Dempsey, Eaker, Dempsey, Heath & Dempsey, Clayton, for plaintiff-appellant.

Derrick & Holderle, St. Louis, for defendant-appellant.

Gray & Jeans, Charles E. Gray, St. Louis, for defendant-respondent, Billy M. Newman.

STOCKARD, Commissioner.

In Elizabeth Feste's suit against Jean Denton and Billy M. Newman, wherein she sought $50,000 for personal injuries arising out of an automobile accident, the jury verdict was in favor of plaintiff and against her host driver, Jean Denton, in the sum of $10,000, but in favor of defendant Billy Newman, the operator of the other automobile. Jean Denton appealed to the St. Louis Court of Appeals 'from the verdict and judgment' against her, and plaintiff appealed to this court 'from the verdict and judgment entered in this action.' When the transcript was filed in the St. Louis Court of Appeals and it was noted that plaintiff's appeal had been taken here the Court of Appeals properly transferred the appeal of Jean Denton to this court.

Jean Denton contends that the trial court erred in giving two instructions, one of which was Instruction No. 5, and in refusing an instruction requested by her. The one and only point in plaintiff's brief is as follows: 'Plaintiff's sole ground for reversal of the judgment of the trial court in favor of defendant Newman is conditioned on this Court's reversal of the judgment in favor of plaintiff against defendant Denton for alleged error in the giving of Instruction Number 5, a sole cause instruction, on behalf of defendant Newman. Plaintiff submits that Instruction Number 5 properly states the law and requires findings of all facts necessary to the verdict. But if this Court should decide, contrary to the position of plaintiff and defendant Newman, that the trial court erred in giving Instruction Number 5, then plaintiff submits that because of any such error the judgment of the trial court should be reversed and she should be granted a new trial of the issues between her and defendant Newman.'

In her point plaintiff sets forth no action or ruling of the trial court which is contended to be erroneous. In fact, in the argument she states that she 'is frankly and openly arguing that she should lose her appeal.' She only contends, as stated in her point, that if Jean Denton prevails on her appeal, there should be a new trial of the issues not only between her and Jean Denton but also between her and Billy Newman. However, she is entitled to such new trial only for error prejudicial to her, and after she has properly preserved and presented her contention of error for appellate review. A contention of error not preserved for appellate review in the appellant's brief must be regarded as abandoned. Heuer v. Ulmer, Mo., 273 S.W.2d 169; Crampton v. Osborn, 356 Mo. 125, 201 S.W.2d 336, 172 A.L.R. 344. We conclude that plaintiff has presented no assignment of error in the point in her brief for appellate review. Billy Newman has filed a motion to dismiss the appeal of plaintiff for the reason that her brief fails to comply with Civil Rule 83.05, V.A.M.R., in that it presents no assignment of error for appellate review. For the reasons previously set forth we agree and conclude that the appeal should be dismissed. See Turner v. Calvert, Mo., 315 S.W.2d 118; Walker v. Thompson, Mo., 338 S.W.2d 114. This leaves for decision only the issues presented by the appeal of Jean Denton, but if this court has jurisdiction of that appeal it is only because it is an appeal from a judgment from which another appeal has been taken which involves more than the minimum jurisdictional amount. See Morton v. Southwestern Telegraph & Telephone Co., 280 Mo. 360, 217 S.W. 831, and Sandusky v. Sandusky, 265 Mo. 219, 177 S.W. 390, which hold that the same case cannot be pending on appeal in two appellate courts through appeals of different parties to the action, and that where more than one party appeals and the amount in dispute in either appeal gives this court jurisdiction, both appeals should be sent to this court for final determination. This presents the question whether appellate jurisdiction is irrevocably established as of the time the appeal is taken, or whether if jurisdiction in a court of limited jurisdiction is established by the record at the time of taking the appeal it may subsequently be lost by failure to preserve or present for appellate review an issue within the scope of the limited jurisdiction.

This court has exclusive appellate jurisdiction in all cases, among others, 'involving the construction of the Constitution of the United States or of this state, * * * the title to real estate, * * * and * * * in all cases where the amount in dispute, exclusive of costs, exceeds the sum' of $15,000. Section 3, Article V, Constitution of Missouri V.A.M.S.; Section 477.040 RSMo 1959, V.A.M.S. Cases may be found in which it is stated that 'appellate jurisdiction over the subject matter is determined upon the record in the trial court at the time the appeal is granted and that nothing subsequently occurring will defeat or confer jurisdiction on this court.' Hunter v. Hunter, 355 Mo. 599, 197 S.W.2d 299, 300. For similar statements see Snowbarger v. M. F. A. Central Cooperative, Mo., 317 S.W.2d 390; Little River Drainage Dist. v. Houck, 282 Mo. 458, 222 S.W. 384; Hardt v. City Ice & Fuel Co., 340 Mo. 721, 102 S.W.2d 592; Tant v. Gee, 348 Mo. 633, 154 S.W.2d 745; State ex rel. Brenner v. Trimble, 326 Mo. 702, 32 S.W.2d 760; McGregory v. Gaskill, 317 Mo. 122, 296 S.W. 123. However, as stated in Hunter v. Hunter, supra, 197 S.W.2d at p. 300, 'This statement of the rule may be too broad if taken literally.' A correct statement, as evidenced by the rulings of this court, is that appellate jurisdiction of this court of a case must exist at the time of taking the appeal, Trokey v. United States Cartridge Co., Mo., 214 S.W.2d 526; Snowbarger v. M. F. A. Central Cooperative, Mo., 317 S.W.2d 390; Paisley v. Liebowits, Mo., 347 S.W.2d 178, and if it does not then exist nothing occurring subsequently will result in this court acquiring jurisdiction. Snowbarger v. M. F. A. Central Cooperative, Mo., 317 S.W.2d 390. However, even though the record indicates that appellate jurisdiction exists in this court at the time the appeal is taken, the failure to preserve and keep alive for appellate review issues essential to the exercise of jurisdiction will result in the lack of jurisdiction of this court to rule the case on appeal.

It has repeatedly been held that in order to vest this court with jurisdiction on the basis that the case involves the construction of the Constitution the question must be raised at the first available opportunity, the sections of the Constitution claimed to have been violated must be specified, the point must be presented in the motion for new trial, if any, and it must be briefed on appeal. City of St. Louis v. Butler, 358 Mo. 1221, 219 S.W.2d 372; McGuire v. Hutchison, 356 Mo. 203, 201 S.W.2d 322, 327; Mooney v. County of St. Louis, Mo., 286 S.W.2d 763; State ex rel. Barnett v. Sappington, Mo., 260 S.W.2d 669. It is thus apparent that if there is compliance with the first three requirements at the time the appeal is taken jurisdiction of the case would appear to be in this court, but by the subsequent failure to comply with the fourth requirement jurisdiction in this court to rule the case is lost. In Ewing v. Kansas City, 350 Mo. 1071, 169 S.W.2d 897, 900, it was stated that the 'jurisdiction * * * [of this court] depends upon live issues being presented on matters within [its] jurisdiction.'

The same result is reached when jurisdiction in this court is dependent only on the basis of the amount in dispute. In Heuer v. Ulmer, Mo., 273 S.W.2d 169, the plaintiff's petition involved an amount less than the minimum amount necessary to vest this court with appellate jurisdiction, but the counterclaim of defendant involved a sufficient amount. The judgment was for the defendant on the petition and for the plaintiff on the counterclaim and both appealed. At the time the appeal was taken the amount in dispute appeared to be within the jurisdiction of this court. However, there was no point in defendant's brief presenting for appellate review any issue as to the counterclaim. In that case, the contention of the defendant was that 'the trial was properly conducted and that no error was committed,' but that 'in the event the court should find some prejudicial error in the conduct of the trial and require that another trial be held, * * * defendant feels that if there should be any prejudicial error discovered * * * such error would require a retrial of the counterclaim, also.' This court held that for the purposes of determining jurisdiction of the appeal "The amount in dispute * * * is determined by the amount that actually remains in dispute between the parties on the appeal, and subject to the determination by the appellate court of the legal question raised by the record." Heuer v. Ulmer, supra at p. 170. This rule is applicable to the pending case.

Mention must be made of Tant v. Gee, 348 Mo. 633, 154 S.W.2d 745, because it may appear to present a different rule. In that case the plaintiff sought specific performance of a contract to convey real estate upon the payment of $2,400, but he also sought a credit of $1,320 on the aforesaid consideration. The trial court 'decreed specific performance, conditioned upon the payment of $1,350.55 by plaintiff.' It was stated in the opinion that on appeal the defendant presented only issues questioning the propriety of the credits allowed the plaintiff, and from that statement alone it might appear that title to real estate was not involved. However, the decree of specific performance was...