Mayor v. Mayor

• Decision Date: 11 September 1961
• Docket Number: No. 2,No. 48593,48593,2
• Citation: 349 S.W.2d 60
• Parties: Bridget MAYOR, Respondent, v. Paul MAYOR, Appellant
• Court: Missouri Supreme Court

Page 60

349 S.W.2d 60

Bridget MAYOR, Respondent, v. Paul MAYOR, Appellant.

No. 48593.

Supreme Court of Missouri, Division No. 2.

Sept. 11, 1961.

Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, for appellant.

Jeremiah Nixon, Thurman, Nixon & Blackwell, Hillsboro, for respondent.

STOCKARD, Commissioner.

The trial court entered judgment granting respondent a divorce and awarding her $7,500 alimony in gross. In the judgment it was provided that 'the cost of the real estate appraisal, in the sum of fifty dollars ($50.00), together with an attorney fee of two hundred dollars ($200.00) to plaintiff's attorneys, are taxed as costs, and all costs in this cause are taxed against the defendant.' An appeal to the St. Louis Court of Appeals was taken prior to the effective date of Senate Bill No. 7 of the 70th General Assembly which increased the appellate jurisdiction of courts of appeals to and including $15,000. That court transferred the appeal here. Mayor v. Mayor, Mo.App., 340 S.W.2d 172. This court has jurisdiction of this appeal only if 'the amount in dispute, exclusive of costs, exceeds the sum of seventy-five hundred dollars.' Section 3, Article V, Constitution of Missouri, V.A.M.S.

Appellant challenges the granting of the divorce to respondent and the award of any alimony. We shall assume that this places in dispute the sum of $7,500 awarded as alimony in gross. See Gomez v. Gomez, Mo.Sup., 336 S.W.2d 656. However, this amount standing alone does not vest appellate jurisdiction in this court. Appellant does not purport to challenge the award of $200 as attorney fees. If appellate jurisdiction is here, it is because the sum of $50 for the expense of a real estate appraisal which was ordered taxed as costs, is in dispute on this appeal.

In his brief appellant asserts that the trial court had no 'jurisdiction to allow an appraiser's fee.' The St. Louis Court of Appeals, mindful of the fact that it had jurisdiction of this appeal only if the amount in dispute, exclusive of costs, did not exceed $7,500, stated that it could find no statute authorizing the assessment of an appraiser's fee as costs in a divorce case, and therefore the $50 award was not to be excluded, on the basis that it constituted costs, in ascertaining the amount in dispute for the purpose of determining appellate jurisdiction. We shall not re-examine the theory advanced by the St. Louis Court of Appeals because, assuming it to be correct, whether or not the taxing of costs against appellant in the amount of $50 for the real estate appraisal was correct is not, as we shall now demonstrate, a live issue for determination on this appeal.

The Supreme Court of Missouri is a court of limited appellate jurisdiction, and its jurisdiction must affirmatively appear of record as of the date of the appeal. Hanssen v. Karbe, Mo.Sup., 106 S.W.2d 415; Kansas City Terminal Railway Co. v. Kansas City Transit, Inc., Mo.Sup., 339 S.W.2d 766; Hemphill v. Jackson, Mo.Sup., 304 S.W.2d 7; Trokey v. United States Cartridge Co., Mo.Sup., 214 S.W.2d 526. 'The amount in dispute * * * is determined by the amount that actually remains in dispute between the parties on the appeal, and subject to the determination by the appellate court of the legal questions raised by the record.' Lemonds v. Holmes, 360 Mo. 626, 229 S.W.2d 691, 692, quoting from State ex rel. Federal Lead Co. v. Reynolds, 245 Mo. 698, 703-704, 151 S.W. 85, 86; Johnson v. Duensing, Mo.Sup., 332 S.W.2d 950. The issues upon which appellate jurisdiction is based must be live issues 'preserved in the record and presented for review upon appeal,' Johnson v. Duensing, supra at page 953; Winslow v. Sauerwein, 365 Mo. 269, 282 S.W.2d 14, 16; Vannorsdel v. Thompson, Mo.Sup., 315 S.W.2d 121, 123, and issues 'which stand abandoned on appeal have been considered colorable and meritless, and insufficient to vest appellate jurisdiction here.' Lemonds v. Holmes, supra at page 692 of 229 S.W.2d. See, also, Ashbrook v. Willis, 338 Mo. 226, 89 S.W.2d 659, 660; Ewing v. Kansas City, 350 Mo. 1071, 169 S.W.2d 897, 900. This court will examine the record presented for review to determine the live issues presented for decision for the purpose of ruling on its jurisdiction of the appeal. Johnson v. Duensing, supra at page 953 of 332 S.W.2d; Vordick v. Vordick, 281 Mo. 279, 219 S.W. 591, 593.

In our examination of the record presented for review in this case we find that appellant made no mention whatever in his motion for new trial of the allowance of an appraiser's fee or the taxing as costs of the expense of a real estate appraisal. Except as specifically authorized by exception to the general rule no claim of error may be considered by an appellate court on appeals in civil cases unless it was presented to or expressly decided by the trial court. Section 512.160 RSMo 1959, V.A.M.S.; Civil Rule 79.03, V.A.M.R. One exception set forth in Civil Rule 79.03 (and also in Section 512.160) is that 'questions of jurisdiction * * * over the subject matter' need not be presented in a motion for new trial in order to be preserved for appellate review. While appellant refers in his brief to the 'jurisdiction' of the trial court to award an appraiser's fee, he does not contend that the trial court did not have jurisdiction of the subject matter of the suit or proceeding pending before it. For example see Bradley v. Bradley, Mo.App., 295 S.W.2d 592, where the defendant-appellant filed no motion for new trial but was permitted to challenge on appeal the award of expense money because the basis of his contention was that 'plaintiff had not established the...