McCary v. McCary

• Citation: 217 S.W. 547
• Decision Date: 14 January 1920
• Docket Number: No. 2512.,2512.
• Parties: McCARY v. McCARY et al.
• Court: Court of Appeal of Missouri (US)

217 S.W. 547

McCARY v. McCARY et al.

No. 2512.

Springfield Court of Appeals. Missouri.

January 14, 1920.

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

Action by Jasper McCary against Cam McCary, administrator of the estate of John T. McCary, deceased, and others. Judgment for defendants, and plaintiff appeals. Transferred to the Supreme Court.

J. S. Davis and James Talbert, both of Cassville, and H. A. Gardner, of Monett, for appellant.

C. M. Landis, of Cassville, and George Hubbert, of Neosho, for respondents.

STURGIS, P. J.

This case must, we think, be transferred to the Supreme Court; the jurisdiction of the appeal being in that court both on account of the "amount in dispute" exceeding our jurisdiction and because it is a case "involving title to real estate." Section 12, art. 6, Constitution of Missouri; article 6, § 5, Amendment of 1884.

Neither party has challenged the jurisdiction of this court, and on the question being raised by this court on argument each party disclaimed any desire to have the case transferred to the Supreme Court. As a consequence neither party has briefed the question of jurisdiction, and we are left to our own resources. Notwithstanding this, we think we not only should, but must, transfer the case to the Supreme Court. When the jurisdiction of this court depends either on the amount in dispute or on the title to real estate being involved, certainly such jurisdiction cannot be waived or conferred by consent of the parties. When jurisdiction depends on a constitutional question, then such question is not in the case, and need not be Passed on unless such question was properly and timely raised and kept in the record on appeal. So, if it is not thus injected into the case, or if it is abandoned at any stage of the procedure, there is no constitutional question involved. In such cases jurisdiction may be said to be conferred on the Court of Appeals by consent of the parties, for by such consent the constitutional question is abandoned. This, we think, is all that the Supreme Court meant in Littlefield v. Littlefield, 272 Mo. 163, 166, 197 S. W. 1057, 1058, when it said:

"Rulings of Courts of Appeals, therefore, are in error which hold that such courts in determining their jurisdiction in appealed cases may settle same whether the question involved has been raised by the parties thereto. Bingaman v. Hannah, 171 Mo. App. 186 , is a case of this type."

The case there mentioned was transferred to the Supreme Court sua sponte by this court because involving title to real estate, and we held then, as we do now, that it is the duty of the appellate court to settle questions of its jurisdiction, although such jurisdiction has not been questioned or is expressly assented to.

The judgment appealed from denied plaintiff, appellant, any relief, so that the relief prayed for by the petition becomes important. Schwyhart v. Barrett, 223 Mo. 497, 501, 122 S. W. 1049; Berry Foundry Co. v. Molders' Union, 251 Mo. 448, 450, 158 S. W. 18.

The petition alleges that one John T. McCary died owning certain real estate and personal property, the latter of the, value of $4,000. The value of the real estate as shown by the evidence is conceded to be sufficient to make the total value of the property involved to be $20,000 to $25,000. It is then alleged that said John T. McCary died intestate; that he was never married, and left no lineal heirs, except that plaintiff is his illegitimate son; that defendants, except his administrator, are his collateral heirs, who as such claim all his property or are persons who claim an interest in such property through or under such collateral heirs. Plaintiff then alleges that, being a son and natural heir of said John T. McCary, his said father made a contract with his mother in his infancy whereby he agreed to take and keep—plaintiff, giving him his name, caring for and raising him as his own child, educating him, and finally making him his son and heir; that under this agreement plaintiff was given into his care and custody, was raised and educated by him as and for his own child, and said John T. McCary promised and agreed that plaintiff should be his heir and should receive all his property at his death; that by reason of the facts stated plaintiff is in equity the only son and heir of said John T. McCary, and is thereby entitled as such to all the aforesaid property of said deceased; that said John T. McCary never formally adopted the plaintiff as his child nor made a will in his favor, and in this failed to carry out the full terms of the contract. The prayer for relief is:

"Wherefore, by reason of the premises aforesaid, plaintiff prays the court to order, adjudge, and decree that he is the son and sole and only heir of the said John T. McCary, deceased, and is entitled to all the real and personal property of which the said John T. McCary died seized as hereinbefore described, and plaintiff prays for all other and further relief to which he may be entitled by reason of the premises."

The answer admits the death of John T. McCary, his ownership of the property mentioned, that defendants are his collateral heirs, and alleges that as such they became by inheritance owners of all the property of said John T. McCary, deceased. The answer then denies the allegations on which plaintiff bases his claim of being the sole heir. The answer also states that plaintiff did not make claim of his heirship or ownership of this property till long after the death of John T. McCary, and with knowledge of the facts permitted certain of the defendants to purchase from the collateral heirs and pay for certain parts of the land under circumstances now estopping plaintiff from claiming said land. Said answer prays for relief as follows:

"Wherefore defendants pray that they have judgment against plaintiff, and that the court ascertain, determine, and...