Fleischaker v. Fleischaker

• Citation: 92 S.W.2d 169,338 Mo. 797
• Decision Date: 21 March 1936
• Docket Number: 33701,33788
• Parties: William Fleischaker, Plaintiff-Respondent, v. Albert Fleischaker, Defendant-Appellant, Ruth Fleischaker, Emil Fleischaker, Iris Fleischaker Meyerhardt and Jacob Fleischaker, Defendants-Respondents. State of Missouri at the Relation of Albert Fleischaker, Relator, v. Perry T. Allen, Robert J. Smith, Walter E. Bailey, Judges of the Springfield Court of Appeals
• Court: Missouri Supreme Court

92 S.W.2d 169

338 Mo. 797

William Fleischaker, Plaintiff-Respondent, v. Albert Fleischaker, Defendant-Appellant, Ruth Fleischaker, Emil Fleischaker, Iris Fleischaker Meyerhardt and Jacob Fleischaker, Defendants-Respondents. State of Missouri at the Relation of Albert Fleischaker, Relator, v. Perry T. Allen, Robert J. Smith, Walter E. Bailey, Judges of the Springfield Court of Appeals

Nos. 33701, 33788

Supreme Court of Missouri

March 21, 1936

Relator's Motion for Rehearing Overruled, March 21, 1936.

Appeal from Jasper Circuit Court; Hon. R. H. Davis, Judge.

Alternative writ of mandamus quashed and case retransferred to Springfield Court of Appeals.

Gossett Ellis, Dietrich & Tyler, Mertsheimer & O'Donnell and Charles M. Grayston for appellant.

Frank R. Birkhead for Ruth Fleischaker, Emil Fleischaker, Iris Fleischaker Meyerhardt and Jacob Fleischaker.

Westhues C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Respondent, William Fleischaker, in case number 33788, filed a bill in equity in the Circuit Court of Jasper County, Missouri, in which he asked the court to construe the terms of the last will and testament of Isadore Fleischaker. The defendants in that suit were the five children, devisees, and only heirs of Isadore Fleischaker. William Fleischaker, the plaintiff, a brother of Isadore, was named in the will as trustee of the estate.

The trial court entered a decree construing the will, and one of the defendants, Albert Fleischaker, the oldest son, appealed from the judgment. The appeal was lodged in the Springfield Court of Appeals. The case was there briefed and submitted for decision. That court, on February 20, 1934, delivered an opinion affirming the judgment of the trial court. [See 70 S.W.2d 104.] A motion for rehearing was overruled April 3, 1934. Appellant also filed a motion in the Springfield Court of Appeals seeking to quash the opinion and to have the case transferred to this court, on the ground that this court and not the Court of Appeals possessed appellate jurisdiction. This, because the amount in dispute exceeded $ 7500. This motion was denied. Thereafter appellant filed mandamus proceedings in this court to compel the judges of the Springfield Court of Appeals to transfer the case to this court. An alternative writ was issued on the 21st day of June, 1934, commanding the Court of Appeals to transmit the case here or to show cause, if any, why the case should not be transferred. In response to this alternative writ the respondent judges transferred the case to this court. The judges of the Court of Appeals are, therefore, the respondents in the mandamus proceeding, being case number 33701, and Albert Fleischaker is the relator. The cases were argued at the September, 1935, term of this court. For a detailed statement of the facts on the merits reference is made to the opinion of the Court of Appeals.

We have reached the conclusion that this court does not have jurisdiction of the appeal in this case, because the record fails to show that the amount in dispute exceeded $ 7500. The facts in brief, pertaining to jurisdiction, are as follows: Isadore Fleischaker, by his last will and testament, left all of his property to his brother William in trust for the benefit of his five minor children. The will provided that the trust should continue until the youngest child reached the age of twenty-one years. The testator also provided in his will that the property should be divided equally among his children. The trustee took charge of the estate and administered the trust. When the youngest child was about to reach his majority the trustee filed a petition in the circuit court stating that a dispute had arisen over the division of the estate, the question of dispute being whether the property of the estate should be divided equally between the five children, as of the date of the testator's death, or whether the division should take place at the termination of the trust, and the maintenance of the children charged against the bulk of the estate in place of against each devisee's share.

It was alleged in the petition that the estate was originally inventoried at approximately $ 24,000; that at the time the trustee filed his petition he had on hand, after making some distributions, the sum of approximately $ 13,000. As mentioned above the appellant, Albert Fleischaker, was the oldest of the five children. He filed an answer to the trustee's petition contending that the estate should have been divided into five equal parts at the time of the testator's death and the maintenance of each child charged against his separate share. The trial court, by its decree, ruled that under the terms of the will the property should be divided into five equal parts at the termination of the trust; that the cost of the maintenance of the children should be charged against the bulk of the estate. From this judgment Albert Fleischaker appealed. The Court of Appeals, as above noted, affirmed the judgment of the trial court.

On the question of jurisdiction the query is whether the entire estate, that is $ 13,000, is to be considered the amount in dispute, or is it the difference appellant would receive depending on the date decreed as a proper time for distribution of the estate. The contending forces have cited many cases in their briefs on the question of jurisdiction. The rule consistently followed, where jurisdiction depended upon the amount in dispute, was clearly stated by the St. Louis Court of Appeals in an early case. This rule was later quoted with approval by this court en banc in Aufderheide v. Polar Wave Ice & Fuel Co., 319 Mo. 337, 4 S.W.2d 776, l. c. 793. The rule and the comment thereon by this court reads as follows:

"One of the clearest legal minds that ever graced an appellate bench in Missouri formulated the Missouri rule of determining jurisdiction in cases wherein relief other than a money judgment is involved.

"That rule (Evens & Howard Fire Brick Co. v. St. Louis Smelting & Refining Co., 48 Mo.App. l. c. 635), reads:

"'It is settled that, where the right of appeal depends on the value of the matter in dispute, such value must be estimated in money. When the object of the suit, however, is not to obtain a money judgment, but other relief, the amount involved must be determined by the value in money of the relief to the plaintiff, or of the loss to the defendant, should the relief be granted, or vice versa, should the relief be denied. If either is necessarily in excess of the sum within the appellate jurisdiction of this court, then the Supreme Court has exclusive cognizance of the appeal. We took this view in the case of Gartside v. Gartside, 42 Mo.App. 513, in transferring that case to the Supreme Court, and that court, in refusing to remand the cause to us upon a motion made to that effect, affirmed our holding.'

"It will be observed that the learned writer was particular, in a few words, to say that if the amount involved upon either side exceeded the jurisdiction of the Court of Appeals, the jurisdiction was in the Supreme Court. There was a reason for this rule. If plaintiff had judgment, his relief gained might exceed $ 7500, whereas the loss to defendant (appellant) might be much under $ 7500. If loss to defendant (appellant) alone controlled, the plaintiff might lose his judgment (for relief in value much more than $ 7500) in an appellate court which had no jurisdiction over the amount involved in plaintiff's judgment. Hence the rule says:

"'If either (plaintiff's gain or defendant's loss, or vice versa), is necessarily in excess of the sum within the appellate jurisdiction of this court (Court of Appeals) then the Supreme Court has exclusive cognizance of the appeal.'"

In the case now before us no money judgment was sought. In the above rule it was stated:

"When the object of the suit, however, is not to obtain a money judgment, but other relief, the amount involved must be determined by the value in money of the relief to the plaintiff, or the loss to the defendant, should the relief be granted, or vice versa, should the relief be denied."

A judgment in the case before us, responsive to the pleadings, could be neither a financial detriment or a benefit to the plaintiff in the case. The judgment, as entered, probably meant a financial loss to appellant. The amount of this loss cannot be determined from this record. It appears, however, from the record that in any event it would not exceed $ 7500. It is, therefore, apparent that upon the theory and reasoning in the Aufderheide case the Springfield Court of Appeals had jurisdiction of this appeal.

Relator however, contends that the entire estate of $ 13,000 should be considered the amount in dispute. In support of this, cases are cited involving injunction proceedings wherein it was sought to prevent a breach of building restriction covenants, such as Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545. The case of Aufderheide, supra, was also cited. In both of those cases this court held that the damage or...