Nemours v. City of Clayton

• Decision Date: 06 July 1943
• Docket Number: 38459
• Citation: 172 S.W.2d 937,351 Mo. 317
• Parties: Alanda Nemours and Dr. Paul R. Nemours, Appellants, v. City of Clayton, a Municipal Corporation, Alfred H. Kerth, Mayor of the City of Clayton, Charles J. Tacke, Chief of Police of the City of Clayton, and John L. Lynes, Street Commissioner of the City of Clayton
• Court: Missouri Supreme Court

172 S.W.2d 937

351 Mo. 317

Alanda Nemours and Dr. Paul R. Nemours, Appellants, v. City of Clayton, a Municipal Corporation, Alfred H. Kerth, Mayor of the City of Clayton, Charles J. Tacke, Chief of Police of the City of Clayton, and John L. Lynes, Street Commissioner of the City of Clayton

No. 38459

Supreme Court of Missouri

July 6, 1943

Appeal from Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge.

Transferred to Court of Appeals.

Keil & Keil and Frank Coffman for appellants.

(1) The constitutional question was properly raised for the first time in the reply. Ex parte Corvey, 287 S.W. 879; Lohmeyer v. Cordage Co., 214 Mo. 685; Harvester Co. v. Bank, 104 S.W.2d 385. (2) The denial of relief to the plaintiffs is shown by the record to be a loss to them of more than $ 7500.

Glen Mohler for respondents.

(1) The court is not limited by the allegations of the petition, but will look to the record as a whole to determine whether the "amount in dispute" exceeds $ 7500. (2) Vanderberg v. Gas Co., 199 Mo. 455. Neither the cost of the property nor its present value of $ 10,000 to $ 12,000 is the "amount in dispute," but the probable damages thereto if the threatened wrong be not restrained. Gast Bank Note Co. v. Fennimore, 147 Mo. 557. (3) No evidence was introduced to show such damages. The record shows the depreciation in the value of the property, its original cost in 1935, less its present value, was due to its location on heavily traveled Clayton road and is in common with the general depreciation of all properties on that road. (4) No constitutional question was properly raised. The ordinances were introduced in evidence by plaintiffs and were set out in the petition, but the petition did not challenge their constitutionality. This was the first opportunity to raise the question. Mike Berniger Mov. Co. v O'Brien, 234 S.W.2d 807. (5) No statutes or ordinances are specifically mentioned as unconstitutional. An allegation in the reply that the statutes under which defendants claim the right to pass the ordinances, and the ordinances themselves, are unconstitutional does not specify the particular statutes and ordinances claimed to violate the Constitution. Such an allegation is insufficient to raise a constitutional question. Excelsior Springs v Ettenson, 188 Mo. 129. (6) Since no statute of the State is mentioned, no constitutional question was raised by reference to them. Newman v. John Hancock Ins. Co., 290 S.W. 133.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Our jurisdiction of this appeal is questioned. Plaintiffs' original brief asserts jurisdiction here on the ground the amount in dispute exceeds $ 7,500. After attack by defendants, plaintiffs' reply brief adds the ground the cause involves a constitutional issue. Mo. Const. Art. 6, Sec. 12.

The appeal is from a judgment denying plaintiffs' injunctive and other equitable relief against the city of Clayton, a city of the fourth class, and its municipal officers in the maintenance and operation of automatic traffic signals on Glen Ridge avenue; the dividing of Glen Ridge avenue into traffic lanes and marking the same; the placing of no-parking warning signs on said avenue and marking the curbs thereon; the enforcement of ordinance provisions insofar as they undertake to regulate traffic on Glen Ridge avenue, and for the removal of said traffic signals, pads, wires, conduits and markings. Glen Ridge avenue is a privately owned north and south way or street extending from Clayton road, on the south, to Wydown boulevard, on the north, within "Moorland Addition," a restricted residential area in the city of Clayton. Glen Ridge is open at each end and is used by the public generally with the exception that during every year the ends are closed alternately for a period of two weeks. The ordinance provisions here involved (briefly) make it unlawful to park a vehicle in a place where parking is prohibited; direct the street commissioner to place standard traffic signs prohibiting the stopping, standing or parking of a vehicle, among other places, on each side of Glen Ridge up to a point 115 feet north of Clayton road; also prohibiting the stopping, standing or parking within 50 feet of an intersection where traffic is controlled by a traffic signal; and define a street or highway so as to embrace all ways or places "open for vehicular traffic by the public, regardless of its legal status and regardless of whether it has been legally established by constituted authority or by user for the statutory period of time as a public highway."

Plaintiffs do not seek monetary relief; but we find in the body of their bill the charge "that the value of the relief sought and the damages which will result to plaintiffs" if relief be refused "is difficult to estimate but that it is more than $ 15,000." The instant case differs from plaintiffs' cited cases of Aufderheide v. Polar Wave I. & F. Co., 319 Mo. 337, 356(II), 370(I, II), 383(3 4), 4 S.W. 2d 776, 783, 793, 801; and Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W. 2d 545, 550[1], cases wherein the records disclosed real disputes involving more than $ 7,500. The real amount in dispute determines appellate jurisdiction. Limited appellate jurisdiction should not be controlled by fictitious amounts. We look to the whole record for the affirmative showing of the real amount in dispute, as well as for other appellate jurisdictional issues. For instance, interest may not be added to an open account prior to demand to vest appellate jurisdiction here. Wolff v. Mathews, 98 Mo. 246, 247, 11 S.W. 563. See also Vandenberg v. Kansas City, Mo., Gas Co., 199 Mo. 455, 456, 97 S.W. 908, 909; May v. Jarvis-Conklin Mtg. Trs. Co., 138 Mo. 447, 449, 40 S.W. 122; Higgins v. Smith (Banc), 346 Mo. 1044, 14 S.W. 2d 149; Esmar v. Haeussler, 341 Mo. 33, 34[1], 106 S.W. 2d 412[1, 2]; General Theatrical Enterprises, Inc. v. Lyris (Mo.), 121 S.W. 2d 139, 140[2-4]. Plaintiffs had the burden on this issue of appellate jurisdiction. They sought relief from damages alleged to be occasioned by traffic regulations and signals governing traffic on Glen Ridge avenue, a privately owned way, and not damages occasioned by traffic on Glen Ridge avenue or on Clayton road. There was testimony that plaintiffs' residential property cost $ 20,000 (estimated) in 1935. Another witness estimated the present value of the property between $ 10,000 and $ 12,500. His testimony, which was the only testimony on the issue, was that the traffic on Clayton road had diminished the value of plaintiffs' property and that the Glen Ridge traffic occasioned no additional burden. The original cost or present value of plaintiffs' property is not the amount in dispute. The property is not being taken. With the only evidence on the issue establishing that the diminished value of plaintiffs' property -- the damages -- is the result of traffic on Clayton road, it is at least speculative to say that the traffic regulations and signals affecting Glen Ridge avenue damage plaintiffs $ 7500. The legitimate inference from this record is that the damages, if any, to plaintiffs resulting from...