Hyer v. Baker

• Citation: 130 S.W.2d 516
• Parties: HYER et al. v. BAKER et al.
• Decision Date: 05 July 1939
• Court: United States State Supreme Court of Missouri

130 S.W.2d 516

HYER et al. v. BAKER et al.

Supreme Court of Missouri, in Banc.

July 5, 1939.

Error to Circuit Court, Johnson County.

Suit by Nellie S. Hyer and others against Anna Baker, Thomas Boyd, doing business as Thos. Boyd Coal Company, L. V. McGraw, doing business as the L. V. McGraw Produce Company, and others to determine title to realty and for the possession of realty, wherein defendants, Thomas Boyd, doing business as Thos. Boyd Coal Company, and L. V. McGraw, doing business as the L. V. McGraw Produce Company, filed an interpleader. To review an order granting the interpleader and discharging those defendants, plaintiffs brought error to the Kansas City Court of Appeals, and that court certified the cause to the Supreme Court, 128 S.W. 2d 1067. On plaintiffs' motion to remand.

Cause remanded to the Kansas City Court of Appeals.

Musser & Musser, Gayles R. Pine, and M. D. Aber, all of Warrensburg, for plaintiffs in error.

A. R. Thompson, Jr., of Warrensburg, for defendants in error.

DOUGLAS, Judge.

The question for determination is whether this court has jurisdiction of this case.

The case was transferred here by the Kansas City Court of Appeals and the question of jurisdiction is raised by the motion of the plaintiffs in error to remand the case to the court of appeals. The case was filed originally in the Circuit Court of Johnson County. The petition contains two counts: The first asks that title to real estate be determined and vested, the second is merely for the possession of the real estate. Defendants in error, Boyd and McGraw, are joined as parties defendant in the original action on the allegation that they are tenants of the property in question. In their separate answers to the second count these defendants admit that they are tenants under monthly rentals and that rent is due. They pray that the court permit them to pay into court all the past-due rent and all rent becoming due during the determination of the case; that the court order the other parties to interplead for such sums; and that they be relieved and discharged from all liability. The trial court sustained their prayers; ordered the monies paid into court; ordered all the other parties except these two defendants to interplead for the same; and discharged these two defendants. Thereupon, the plaintiffs in error sued out this writ of error in the Kansas City Court of Appeals.

In its opinion Hyer v. Baker, 128 S.W.2d 1067, transferring the case here, the court of appeals found that the first count of the plaintiff's petition presented issues not within the jurisdiction of that court. As to the second count, it said that whether title to real estate was involved might have to be determined by the answers of the other defendants, which did not appear in the record. Considering for the moment the second count independently and alone this court would not have jurisdiction under such circumstances, because our jurisdiction would not appear affirmatively from the record. We have held that in an ordinary possessory action title to real estate is not involved and therefore we do not have jurisdiction unless such issue is injected by answer. Gibbany v. Walker, 342 Mo. 156, 113 S. W.2d 792.

The opinion of the court of appeals continues : "* * * we conclude that it is not in the province of this court to split up this cause of action and review as to any of the issues presented in the record herein. The determination of title to real estate in a constitutional sense is concluded by us to be involved in determination of the issues as made by the plaintiffs' petition and hence this court has no jurisdiction to review."

The question arises whether the proceeding having to do with the interpleader alone is separable and distinct from the cause of action contained in the first count. If it is, title to real estate is not involved and the amount in controversy appearing to be not in excess of $7,500, we would have no jurisdiction but on the contrary jurisdiction would lie in the court of appeals.

It is well settled in this state that an interpleader may be made by answer. Roselle v. Farmers' Bank of Norborne, 119 Mo. 84, 24 S.W. 744, 745. In that case it was held that when such is done, the first and only issue to be tried is...