Gary Realty Co. v. Kelly

• Decision Date: 16 July 1920
• Parties: GARY REALTY CO. v. KELLY et al.
• Court: Missouri Supreme Court

224 S.W. 410

284 Mo. 418

GARY REALTY CO. v. KELLY et al.

Supreme Court of Missouri, Division No. 2.

July 16, 1920.

Motion for Rehearing Denied and Opinion Modified September 15, 1920.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by the Gary Realty Company, a corporation, against E. P. Kelly and others, in which a motion by H. H. Tammen and another, not parties to the suit, under Rev. St. 1909, § 2244, to quash an execution awarding possession of property to the plaintiff, was overruled, and the movants appealed to the Supreme Court. Motion to transfer cause to Court of Appeals granted and case transferred.

The appeal in this case is from an order of the circuit court overruling a motion to quash a writ of restitution.

The plaintiff brought suit before a justice of the peace in Jackson county, in unlawful detainer, against the defendants E. P. Kelly, W. Le Doug, A. Le Marquand, and Paul Le Marquand. The case was certified to the circuit court of Jackson county, where, March 18, 1916, judgment was entered in favor of the plaintiff against said defendants, awarding possession of certain premises in Kansas City, assessing damages for the unlawful detention of the property at $2,000, and the monthly rents and profits at $650, which were doubled by an order of the court and judgment rendered for $4,000 damages and $1,300 per month for rents and profits until the restitution of the premises. The case was appealed to this court, where the judgment of the circuit court was affirmed. Gary Realty Co. v. Kelly et al., 214 S. W. 92. After affirmance of the judgment, August 6, 1919, execution was issued for the amount of the damages and costs then accrued, commanding the sheriff to deliver possession to the plaintiff. The amount of damages accrued at the time, including rents and profits up to the date of the issuance of the execution, and doubled in accordance with the terms of the judgment, was $32,829.29.

On August 7, 1919, G. F. Bonfils and Henry G. Tammen, not parties to the suit or the judgment, filed in the circuit court a motion to quash that part of the execution awarding possession to the plaintiffs, leaving the execution for the money judgment against the defendants unaffected. This motion was presented under section 2244, Revised Statutes of Missouri 1909, which provides that any person "against whose property any execution or order of sale shall be issued" may apply to the circuit court for the purpose of having the same quashed. The motion sets up certain alleged iregularities in the certiorari proceeding, whereby the cause reached the circuit court from the justice of the peace, and alleges, among other things, that the movants are the owners of the property and the holders of the lease upon it.

The motion thus filed by Tammen and Bonfils, on the 2d day of September, 1919, was overruled, and the same day the movants filed their application and affidavit for appeal, and their appeal was granted to the Supreme Court.

After the cause reached this court, a motion was filed therein by the respondents November 24, 1919, to require the appellants to give a new supersedeas bond on the ground that the appeal bond given did not comply with sections 7711 and 7728, Revised Statutes of Missouri 1909. This court sustained the motion, but the appellants, movants, failed to comply with the order, and the plaintiffs were put in possession of the premises February 12, 1920, six months and six days after the execution was issued.

The appellants then filed a motion in this court to transfer the cause to the Kansas City Court of Appeals on the ground that this court is without jurisdiction, and that motion must now be considered.

Frank M. Lowe, of Kansas City, for appellants.

Cooper, Neel & Wright, of Kansas City, for respondent.

WHITE, C. (after stating the facts as above).

I. The title to real estate is not involved, and the only question to be determined in settling the matter of jurisdiction is the money value of the property in issue. If the amount involved exceeds in value $7,500, then this court has jurisdiction; otherwise, not. To determine the amount in dispute we must ascertain the facts from the entire record. Keleher v. Johnson, 272 Mo. 699, loc. cit. 701, 199 S. W. 935; State ex rel. v. Ellison, 272 Mo. 571, loc. cit. 580, 199 S. W. 984; State ex rel. v. Reynolds, 245 Mo. 704, 151 S. W. 85; Wilson v. Drainage & Levee District, 237 Mo. loc. cit. 40, 139 S. W. 136; Bridge Co. v. Transit Co., 205 Mo. loc. cit. 179, 180, 103 S. W. 546; Vanderburg v. Gas Co., 199 Mo. loc. cit. 459, 97 S. W. 908; Kitchell v. Railway Co., 146 Mo. loc. cit. 457, 48 S. W. 448.

"Where relief is sought other than in the recovery of a money judgment, the value of the right necessarily involved, estimated in money, will constitute the measure of jurisdiction." State ex rel. v. Reynolds, 275 Mo. 113, loc. cit. 121, 204 S. W. 1093, 1095.

As otherwise stated in Gast Bank Note Co. v. Fennimore Ass'n, 147 Mo. loc. cit. 559, 49 S. W. 512:

"The amount involved must be determined by the value in money of the relief to plaintiff, or of the loss to the defendant, should the relief prayed be granted, or vice versa, should the relief be denied."

This statement of the rule is repeated in several cases. State ex rel. v. Reynolds, 256 Mo. loc. cit. 718, 165 S. W. 801; McCoy v. Randall, 222 Mo. loc. cit. 34, 121 S. W. 31; Clothing Co. v. Watson, 168 Mo. loc. cit. 143, 67 S. W. 391, 56 L. R. A. (N. S.) 951, 90...