Luttrell v. State Highway Commission
| Decision Date | 13 May 1963 |
| Docket Number | No. 1,No. 49508,49508,1 |
| Citation | 367 S.W.2d 615 |
| Parties | Billy Joe LUTTRELL and Patsy Joan Luttrell, (Plaintiffs) Respondents, v. STATE HIGHWAY COMMISSION of Missouri, (Defendant) Appellant |
| Court | Missouri Supreme Court |
Robert L. Hyder, Wilkie Cunnyngham, Jefferson City, for appellant.
Vogel & Frye, Cape Girardeau, for respondents.
Defendant, State Highway Commission of Missouri, has appealed from an adverse judgment entered against it in an ejectment suit. The court held that plaintiffs were entitled to possession of specifically described real estate located in Cape Girardeau County, Missouri, except a small portion thereof which was said to lie within the boundary lines of an old road as it existed prior to January 9, 1956. The real estate from which the court ordered the defendant ejected was, in fact, certain highway right-of-way upon which, in the summer of 1956, the Commission had constructed and has since maintained supplementary State Highway 'H', in Cape Girardeau County. The court also found that defendant had committed injury and waste whereby plaintiffs had been damaged in the sum of $100. The judgment provided that plaintiffs have and recover the possession of the described property, awarded plaintiffs $100 damages and assessed the costs against the defendant.
Appellant says that this court has jurisdiction of the appeal, because it contends that it had an easement for the construction and maintenance of the state highway upon the described real estate; and that the judgment of the court, in addition to giving money damages against defendant, ordered defendant ejected from the premises and 'hence this action involves title to real estate,' citing Article V. Section 3, Constitution of Missouri 1945, V.A.M.S.
Respondents suggest that this court also has jurisdiction of the appeal under Article V. Section 3 of the Missouri Constitution, for the reason that the cause involves the construction of the Constitution of the United States, Amendment V. Amendment XIV, Section 1, and a construction of the Constitution of Missouri, Article, I, Section 26, in that respondents contend that appellant has attempted to take their property in violation of the said constitutional provisions. There is no merit in respondents' contentions since no constitutional provision is referred to in any of the pleadings, and no constitutional issue has been properly presented or preserved. City of St. Louis v. Butler Company, 358 Mo. 1221, 219 S.W.2d 372, 376.
While the jurisdiction of this court has not been questioned by either party, nevertheless, since this court is a court of limited and not general jurisdiction, it is our duty to determine whether this court has jurisdiction of this appeal. Gennari v. Norwood Hills Corp., Mo.Sup., 322 S.W.2d 718, 720; Johnson v. Duensing, Mo.Sup., 332 S.W.2d 950, 953. We have reached the conclusion that it does not have jurisdiction of this appeal and that this cause must be transferred to the St. Louis Court of Appeals for determination.
Plaintiffs' petition, as filed in the Cape Girardeau Court of Common Pleas on the 18th of July, 1961, contained two counts, one in ejectment to obtain possession of specifically described real estate, with a prayer for monthly rents and profits in the sum of $100, for $1,500 damages and $100 per month rents and profits from and after the entry of judgment in the cause until possession be restored to plaintiffs, and for their costs. In a second count the plaintiffs sought to have the title to described real estate quieted and determined in them. Plaintiffs alleged that defendant claimed some right, title or interest in and to the premises described which was adverse to plaintiffs, and the precise nature and character of which was unknown, but was without merit or legal validity and constituted a cloud upon the plaintiffs' title to the premises described. Plaintiffs prayed judgment quieting the title to the described premises in them against all claims and demands of defendant or those claiming under defendant.
After a motion to dismiss for want of jurisdiction had been filed and overruled, the defendant filed an answer to count one and count two of plaintiffs' petition denying each and every allegation contained in each and all of the paragraphs of the petition not specifically admitted; alleged that defendant was the 'alter ego of the State of Missouri in all matters pertaining to the location, relocation, reconstruction, improvement and maintenance of state highways,' and that it was not liable in any action for any alleged tort. It was further alleged that the real estate sought to be recovered was right-of-way for Route 'H' in Cape Girardeau County on which the defendant had constructed permanent improvements for public highway use and that the public had been using this particular right-of-way since sometime in 1956. Defendant further alleged that it had obtained conveyances of said right-of-way from named persons for use of the State Highway Commission and that defendant had been required to spend very large amounts of money from the state road fund and that the making of said permanent improvements thereon was open, visible and publicized throughout Cape Girardeau County and other territory and was known to these plaintiffs and that at no time during or before said construction of said highway did anyone make any claim or suggestions to defendant that it had not...
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Stine v. Kansas City, 25307
...Motion to Amend Judgment. Obviously, it was not raised at the first opportunity and none was preserved. Luttrell v. State Highway Commission, Mo., 367 S.W.2d 615, 616(1). The defendant City fixed its intentions as to the law questions to be litigated in the trial court at the very beginning......
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Smith v. McClard
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