Krummenacher v. Western Auto Supply Co.

• Decision Date: 16 December 1947
• Docket Number: No. 27278.,27278.
• Citation: 206 S.W.2d 991
• Parties: KRUMMENACHER et al. v. WESTERN AUTO SUPPLY CO.
• Court: Missouri Court of Appeals

206 S.W.2d 991

KRUMMENACHER et al. v. WESTERN AUTO SUPPLY CO.

No. 27278.

St. Louis Court of Appeals. Missouri.

December 16, 1947.

Rehearing Denied January 13, 1948.

Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.

"Not to be reported in State Reports."

Suit by Edwin A. Krummenacher and Mabel Krummenacher against Western Auto Supply Company, a corporation, to abate a nuisance. From the judgment, defendant appeals.

Reversed.

Shepley, Kroeger, Fisse & Ingamells and Wm. K. Stanard, II, all of St. Louis, for appellant.

Louis E. Miller, Miller & Landau, B. Sherman Landau and George J. Bagot, all of St. Louis, for respondents.

HUGHES, Judge.

This is an action having for its purpose the abatement of a nuisance by injunction, and in the one count of the petition the plaintiffs further pray for damages by reason of the alleged nuisance in the sum of $1500 for their actual damages and $1500 for their punitive damages.

Defendant conducts a store for the sale of automobile supplies and other merchandise at 5977 Delmar Avenue, St. Louis, Missouri. In the rear of the store is a vacant area 50 feet wide and extending northwardly 43 feet to the alley, and the rear of plaintiffs' residence property is immediately across the alley to the north. The customers of defendant use the alley and the vacant area to drive their automobiles and trucks to the rear of defendant's store for the purpose of installing, servicing and exchanging batteries, tires and various types of automobile appliances, parts and equipment, and it is also used by trucks delivering merchandise to defendant's store. The nuisance alleged by plaintiffs is that trucks and all types of motor vehicles, using said alley and vacant area, regularly and consistently run into and against and through plaintiffs' fence situated at the rear of plaintiffs' premises, and plaintiffs have been required to expend sums of money for the maintenance, repair and replacement of said fence; that the children of plaintiffs and other residents of the neighborhood play in the plaintiffs' yard and frequently near the rear fence, and are subjected to the hazards and perils of being struck and injured by automobiles running into and against and through the fence; that the maintenance of the service lot and the attendant vehicular traffic thereon has greatly and unreasonably destroyed and depreciated and continues to destroy and depreciate the market value of plaintiffs' property; that the noise, odor, mist, dust and dirt emanating from the operation of the automobiles and trucks over and on said service lot have been and are so great as to unduly disturb the comfort, quietude and peaceful enjoyment of plaintiffs and their household and to render their home untenantable as a place of abode; that plaintiffs are without adequate remedy at law and that the nuisances complained of are continuing in their nature and have resulted and will continue to result in irreparable loss and injuries to plaintiffs; that defendant has been notified of such conditions, but has knowingly and willfully failed and refused to abate said nuisances or to assume the expense for the damages caused by the operation of said service lot in the furtherance of defendant's mercantile business. These allegations of the petition were denied by defendant's answer.

There was a sharp conflict in the testimony as introduced by the plaintiffs on the one side and the defendant on the other. The cause was submitted, and thereafter the trial court made its findings of fact, and entered judgment as follows:

"Therefore, it is ordered, adjudged and decreed by the court:

"(1) That the plaintiffs have and recover from the defendant the sum of Five Hundred Dollars ($500.00) as and for actual damages;

"(2) That the plaintiffs have and recover from the defendant the sum of one dollar ($1.00) as and for punitive damages;

"(3) That the plaintiffs' prayer for injunction is hereby denied; and

"(4) That the costs of this proceeding be assessed against the defendant, and that execution therefor issue in conformity with this judgment."

From this judgment defendant appeals.

If the trial court was without jurisdiction to render the judgment that was rendered, such judgment cannot be approved by this court on appeal. And this is true whether the question is raised by either of the parties or not. The first question to be decided by any court in any case is whether it has jurisdiction in point of fact. Ussery v. Haynes, 344 Mo. 530, 127 S.W.2d 410. The jurisdiction of a court to adjudicate a controversy rests on jurisdiction of the subject matter, jurisdiction of the res or the parties, and jurisdiction to render the particular judgment in the particular case. State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52. "Jurisdiction" is the right to adjudicate concerning the subject matter in a given case. Dusenberg v. Rudolph, 325 Mo. 881, 30 S.W.2d 94. And so the first question in this case is whether the trial court had jurisdiction to render the particular judgment it did render.

This was a suit in equity for the abatement of a continuing nuisance. In this case the trial court denied any equitable relief to plaintiffs, and plaintiffs have not appealed but have accepted so much of the judgment. The trial court then went further and proceeded to give plaintiffs a money judgment for damages as though the action were in a law court. The effect of the judgment was that the court found no equity in plaintiffs' favor, but rendered judgment on purely legal issues that may or may not have been in the case.

Our Supreme Court in the case of Miller v. St. Louis & K. C. R. Co., 162 Mo. 424, 63 S.W. 85, 87, said, "But there must exist in the facts of the case some equity upon which it exercises its peculiar jurisdiction in part relief. If, when it comes to consider the case, there is found no equity in it, and no equitable relief therefore is granted, a court of equity will not retain the case to try the purely legal issues that may be in it." And this court, in the case of Schopp v. Schopp, 162 Mo.App. 558, 142 S.W. 740, 742, said, "But this is a suit, not at law but in equity, and when the equity fails the right to recover damages in a suit in equity also fails." And in the case of Modern Woodmen of America v. Cummins, 216 Mo.App. 404, 268 S.W. 383, 385, this court said, "A litigant may not by merely asserting an unfounded claim or right throw a cause into equity, and, when it turns out upon the trial that he is not entitled to any equitable relief, insist that the chancellor grant him the legal relief the evidence shows him entitled to, and thus deprive the adverse party of the right to have such legal issue tried by a jury."

It is the general rule that where equity has once become possessed of a cause it will retain it for the purpose of administering full...