Hogue v. St. Louis-San Francisco Ry. Co.

• Decision Date: 21 December 1928
• Docket Number: No. 4571.,4571.
• Parties: HOGUE v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

12 S.W.2d 103

HOGUE v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 4571.

Springfield Court of Appeals. Missouri.

December 21, 1928.

Appeal from Circuit Court, Christian County; Fred Stewart, Judge.

Action by L. B. Hogue against the St. Louis-San Francisco Railway Company. Judgment for defendant, and from an order sustaining plaintiff's motion for new trial defendant appeals. Cause transferred to Supreme Court.

E. T. Miller, of St. Louis, and Mann & Mann, of Springfield, for appellant.

Neale & Newman and Warren M. Turner, all of Springfield, for respondent.

BAILEY, J.

This is an action for damages. The appeal is from an order sustaining plaintiff's motion for new trial. At the outset we are confronted with a motion to transfer this case to the Supreme Court. The motion alleges that plaintiff's amended petition, upon which the case went to trial, laid his damages in the sum of $30,000; that at the conclusion of plaintiff's evidence the trial court gave a peremptory instruction to the jury to find the issues for defendant; that over defendant's objection the trial court withdrew its ruling on the demurrer in order that the petition might be amended changing the prayer of the petition from $30,000 to $7,400; that the amendment was made solely "for the purpose of depriving the Supreme Court of Missouri of jurisdiction of this cause upon appeal and of giving color of jurisdiction to this court; that such proceeding was, and is, in law, a fraud upon the jurisdiction of the Supreme Court and wholly ineffectual to deprive that court of the jurisdiction confided in and conferred upon it by the constitution and statutes of the State of Missouri."

The question of whether or not the Supreme Court or Court of Appeals has jurisdiction of an appeal must be determined from the record alone. State v. Briscoe, 237 Mo. 154, 135 S. W. 58, 140 S. W. 885; Addison Tinsley Tobacco Co. v. Rombauer, 113 Mo. 435, 20 S. W. 1076.

The abstract of the record, in so far as pertinent to the question under consideration, is as follows:

"At the close of all the evidence on behalf of plaintiff, the defendant asks the court to give the following instructions, in the nature of a demurrer:

"`The court instructs the jury that under the pleadings and the evidence offered on behalf of plaintiff, plaintiff is not entitled to recover, and your verdict must be for defendant.'

"Thereupon the court marked said instruction in the nature of a demurrer as given and called for the jury to come in.

"Whereupon, plaintiff asked permission to amend the prayer of his petition from $30,000 to $7,400 and defendant objected to that being done at the time, for the reason it was done for the purpose of affecting the appellate jurisdiction. Then counsel for plaintiff asks the court to withdraw its ruling on the demurrer until the amendment might be made; which the court consents to do and does. The court thereupon withdraws its ruling on the demurrer and leaves the same as though it had not been acted upon. Whereupon, the court permits plaintiff to make the amendment requested.

"To which ruling of the court the defendant, by its counsel, duly objected and excepted at the time.

"Following which the court again makes the order sustaining the demurrer and the jury, at the direction of the court, on the said 14th day of September, 1927, returned into open court the following verdict:

"`We, the jury, find the issues in favor of the defendant.

                                    "`F. E. Nix, Foreman.'"
                

The record further shows that thereafter the court sustained plaintiff's motion for a new trial; that defendant filed affidavit for appeal which was granted to the Supreme Court; that thereafter, on motion of plaintiff, the granting of the appeal to the Supreme Court was voided, and the appeal was then granted to this court.

The jurisdiction of this court is limited to cases in which the amount in dispute, exclusive of costs, does not exceed the sum of $7,500. Section 2418, R. S. Mo. 1919. It is also true that in furtherance of justice pleadings may be amended at any time before final judgment. Section 1274, R. S. Mo. 1919. The question is, however, when the record shows the sole reason for an amendment to a petition, made after the evidence is all in, is for the purpose of giving color to jurisdiction in this court, whether or not such liberty may be taken in designating the court to which the appeal may go and the courts give sanction to practice of that character. A somewhat similar situation arose in the case of Casey v. Transit Co., 116 Mo. App. 235, 91 S. W. 419. Judge Nortoni, in discussing the question, uses this language:

"It is suggested, however, by appellant that because of the present congested condition of the docket of the Supreme Court which would properly have jurisdiction of this appeal, had the suit been for the full statutory penalty, suits of this nature are being instituted for lesser amounts in order to oust that court of its appellate jurisdiction and confer jurisdiction upon the two courts of appeals to the end that a more speedy determination thereof be had. Be this as it may, it is the duty of this court, in the absence of any showing to the contrary, to presume correct action, proper conduct and laudable motives on the part of all concerned in the litigation at bar. It might be said, however, that if such had been the moving cause in this or any other case, then the courts would look with a high degree of disfavor upon such practice and long hesitate before impressing the solemnity of judicial sanction upon a course of conduct that may be termed a fraud both upon the law and jurisdiction of the court. Greene County Bank v. Teasdale Com. Co. [C. C.] 112 F. 801; Bowman v. Railway Co., 115 U. S. 614 [6 S. Ct. 192, 29 L. Ed. 502]. Courts are cautious to see that other tribunals of equal or superior jurisdiction are not thus deprived of their lawful rights to hear and determine such cases as the Constitution and the law provide should go before them for hearing and determination. Stanley v. Railway Co., 62 Mo. 508." (Loc....