Appeal
from Douglas Circuit Court; Hon. Fred Stewart
Judge.
OPINION
Henwood, C.
The
respondents (plaintiffs below) sued appellant (defendant
below), in the Circuit Court of Douglas County, for $ 176,
the alleged value of sand and gravel wrongfully taken and
removed from their premises, and asked judgment for treble
damages for the alleged trespass, as provided by Section
4242, Revised Statutes 1919. The trial court, without the
intervention of a jury, found the issues for plaintiffs and
rendered judgment in their favor for $ 40. From
that judgment defendant was granted an appeal to this court,
which it has perfected by filing here a complete transcript
of the record, including a duly certified copy of its bill of
exceptions. Both sides have filed briefs in this court.
Shortly
after the filing in this court of a certified copy of the
judgment and the order granting the appeal, defendant filed
here a motion requesting the transfer of this cause to the
Springfield Court of Appeals, on the ground that this court
has no jurisdiction. By order of this court, this motion was
taken as submitted with the case, for the purpose of
determining whether or not the title to real estate is
involved. To settle this question we now look to the record.
The
pleadings and judgment, being short, will be quoted in full,
as follows:
"Petition.
"Plaintiff
states that the defendant is a corporation duly organized and
incorporated under and by virtue of the laws of the State of
Missouri, and subject to sue and be sued as such corporation.
"Plaintiffs
for their cause of action state that they are now and were on
the first day of July, 1922, owners and in possession of the
following described land, to-wit, a part of the Southwest
Quarter of the Southwest Quarter of Section 33, Township 27,
of Range 16, more particularly described as follows, all that
part of the said forty acre tract of land above described
lying West of Cow-Skin creek; also that part of the
South-East Quarter of the South-East Quarter of Section 32,
Township 27, of Range 16, laying North of the said Cow-Skin
creek, all in Douglas County, Mo., and that the said
defendant, on the 1st day of July, 1922, and from that time
to time until the first day of February, 1923, by its
officers, agents and employees did wilfully enter in and upon
the premises of the plaintiffs above described and did dig
up, take and carry away 880 cubic yards of sand and gravel,
the same then and there being a part of the said realty, of
the value of one hundred and seventy-six dollars, the said
defendant then and there having no right or interest in the
said sand and gravel.
"Wherefore,
plaintiff pray judgment for treble damages as provided by
statute, together with their costs."
"Answer.
"Comes
now the defendant in the above-entitled cause and for its
answer to plaintiffs' petition herein admits that it is a
corporation under the laws of the State of Missouri and as
such is capable of suing and being sued, but denies each and
every other allegation in plaintiffs' petition contained.
"For
further answer herein defendant says that during the time in
plaintiffs' petition mentioned, it arranged with and
purchased from C. A. Harnden and Lucy L
Harnden, husband and wife, certain sand and gravel located in
the S. E. Quarter of the Southeast Quarter of Section
Thirty-two (32) Township Twenty-seven (27) Range Sixteen (16)
who were the owners of said land, and that defendant did
pursuant to said arrangement and under the direction of said
owner, remove certain sand and gravel from the
above-described land to be used on a state road; that the
plaintiffs at all times
herein mentioned and at all times mentioned in
plaintiffs' petition, were aware of the fact and knew of
their own personal knowledge that the arrangement with the
owners of the above-described land of the defendant herein
had been made for the disposition of said sand and gravel,
and that during all the times in which said sand and gravel
were being removed by the defendant, the plaintiffs were...
