McMurray v. Kansas City Gas Co.

• Decision Date: 02 April 1945
• Docket Number: No. 39286.,39286.
• Citation: 186 S.W.2d 593
• Parties: LA VERNE McMURRAY, Appellant, v. KANSAS CITY GAS COMPANY and METROPOLITAN LIFE INSURANCE COMPANY.
• Court: Missouri Supreme Court

186 S.W.2d 593

LA VERNE McMURRAY, Appellant, v. KANSAS CITY GAS COMPANY and METROPOLITAN LIFE INSURANCE COMPANY.

No. 39286.

Supreme Court of Missouri.

Division One, April 2, 1945.

Appeal from Jackson Circuit Court. — Hon. Brown Harris, Judge.

APPEAL DISMISSED.

Trusty & Pugh and L.W. Rodekohr for appellant.

Charles M. Miller for respondent Kansas City Gas Company.

BRADLEY, C.

This is an appeal from an order sustaining what is termed a motion for a nunc pro tunc order to correct the number of a case.

LaVerne McMurray, appellant here, and her husband, Charles McMurray, on December 6, 1943, had separate personal injury suits pending in the Jackson County circuit court against respondents here. The husband's case was No. 480984; the wife's was 480986, and in her petition she asked judgment for $15,000. December 6, 1943, in Assignment Division No. 2, the following order was made:

"Now on this day, the following numbered and entitled cause is by the court assigned to the respective division to wit: 480984 — McMurray v. Kansas City Gas Co. et al., Division No. 1."

Plaintiff, appellant here, and defendants, respondents here, and counsel on both sides appeared in Division No. 1 and tried to a jury the wife's case, No. 480986, and on December 18, 1943, the jury returned a verdict in favor of the wife for $7500 against the defendant Metropolitan Life Insurance Company, but found in favor of the defendant Kansas City Gas Company. The Metropolitan Life filed a motion for a new trial and plaintiff, appellant here, filed a motion for a new trial as to the Gas Company. These motions are still pending, as we understand.

May 5, 1944, the Gas Company filed in the assignment division the motion to correct the number, so the record would show that No. 480986, the wife's case, was assigned out for trial and not No. 480984, the husband's case. The court sustained this motion, made an order so correcting, and the wife appealed, and that is the appeal here.

S.L. Trusty, counsel for appellant (and her husband) and who tried her case, was called as a witness for the Gas Company at the hearing on the motion to correct the number, and testified that the husband, Charles McMurray was gone, was in the Navy, and that he wanted to try the wife's case and that he knew he was "trying the case of LaVerne McMurray" when the case was being tried.

Appellant contends that the court was without jurisdiction to make the order correcting the number and that said order is wholly void. On the other hand the contrary contention is made. Also, it is contended that the order of correction was not appealable. And the point is made that the appeal should be dismissed because appellant failed to make a proper statement and because of an insufficient assignment of errors.

[1] Nothing is said in the briefs on the question of jurisdiction of this appeal. However, when such question presents itself, it is our duty to determine such question whether raised or not. Perkins v. Burks et al., 336 Mo. 248, 78 S.W. (2d) 845, 61 S.W. (2d) 756; Ashauer v. Peer et al., 346 Mo. 218, 139 S.W. (2d) 991; Miller et al. v. Heisler et al. (Mo. Sup.), 180 S.W. (2d) 54.

[2] Sec. 12, Art. 6, Constitution, and Sec. 5, Amendment of 1884, read in connection with Sec. 2078, R.S. 1939, Mo. R.S.A., Sec. 2078, prescribe the appellate jurisdiction of the supreme court. Assuming that such an appeal as here will lie, still under the record here, there could be no possible theory that would give the supreme court jurisdiction unless it be on the theory that the amount in dispute exceeds the sum of $7500.

"Where our jurisdiction is invoked on the basis of the amount in dispute and a money judgment is not sought, then such amount must be determined by the money value of the relief to plaintiff, or of the loss to defendant, should the relief be granted, or vice versa, should the relief be denied." Frank Schmidt Planing Mill Co. v. Mueller et al., 347 Mo. 466, 147 S.W. (2d) 670; Higgins et al. v. Smith et al., 346 Mo. 1044, 144 S.W. (2d) 149. As we see it, the sole question presented, assuming the appeal is proper, is the validity of the correction order. If such order is valid, then appellant's case is pending on the motions for a new trial. If the correction order is void and the whole proceedings touching appellant's case are void as is contended, then the case, it seems, would be pending and unassigned.

We are quite clear that if such an appeal as...