Odom v. Langston

• Citation: 170 S.W.2d 589
• Decision Date: 14 September 1942
• Docket Number: No. 6368.,6368.
• Parties: ODOM et al. v. LANGSTON et al.
• Court: Court of Appeal of Missouri (US)

170 S.W.2d 589

ODOM et al. v. LANGSTON et al.

No. 6368.

Springfield Court of Appeals. Missouri.

September 14, 1942.

Appeal from Circuit Court, Douglas County; Tom R. Moore, Judge.

Suit by A. D. Odom and others against Louise W. Langston and others for cancellation of a trust agreement. Judgment for defendants, and plaintiffs appeal. Transferred from the Supreme Court, 159 S.W.2d 686. On appellants' motion to retransfer the case to the Supreme Court.

Motion sustained, and case ordered transferred back to the Supreme Court.

J. N. Burroughs, of West Plains, and Frank B. Williams and Sam M. Wear, both of Springfield (Joe N. Brown, of Springfield, of counsel), for appellants.

A. W. Landis and M. E. Morrow, both of West Plains, Arch A. Johnson, of Springfield, Herman Pufahl, of Bolivar, R. L. Hyder, of Jefferson City, and Scarritt, Jones & Gordon, of Kansas City, for respondents.

BLAIR, Presiding Judge.

This suit originated in the Circuit Court of Howell County and went to the Circuit Court of Douglas County on change of venue. The Judge of the Douglas Circuit Court sustained a demurrer to plaintiffs' (appellants') amended petition in two counts. Plaintiffs stood on their petition, suffered judgment and an appeal was granted to them to the Supreme Court of Missouri. The Court has transferred the case to this Court, on the ground that the amount in dispute was not affirmatively shown by the record in the case to have exceeded $7,500. Odom v. Langston, Mo. Sup., 159 S.W.2d 686.

The appellants have filed in this Court a motion to retransfer the case to the Supreme Court, on the ground that this Court has no appellate jurisdiction because the amount in dispute exceeds $7,500. As our jurisdiction is thus attacked, we will take that question first, because jurisdiction cannot be conferred on this Court by agreement, and we do not believe even by the order of the Supreme Court, unless we actually have such jurisdiction.

In the decision of the Supreme Court mentioned above that Court made an order transferring the case to this Court because it did not affirmatively appear from the record made in the court below that the amount in dispute exceeded $7,500. We have come to the conclusion that such transfer was inadvertent and that the Supreme Court must have overlooked the allegations of the amended petition fixing the value of the property at about $95,000, and we believe that appellate jurisdiction lies only in the Supreme Court, because the amount in dispute in the case exceeds $7,500.

In the opinion referred to the Supreme Court properly held that the record in the case below must affirmatively show that the amount in dispute exceeds $7,500 or the proper court of appeals, being a court of general appellate jurisdiction, will have appellate jurisdiction in the particular case. The only record, where a demurrer to the petition is sustained, is the petition itself and the allegations of fact made in such petition must be taken as absolutely true, and, in such a case, the allegations of the petition are all of the record of facts before the trial court.

The suit in the Circuit Court was for the cancellation of a trust agreement and the only record of the value of the property involved — the amount in dispute — was the allegation of the petition. The amended petition, to which a demurrer was sustained, contained the following allegation: "that the property was taken over and is now held by the said parties claiming to act in the capacity of trustees under said instrument of writing, consists of money, notes, government bonds, industrial stocks and bonds and other securities of the value of about ninety-five thousand dollars."

It must be remembered that this was a suit to cancel and set aside a trust agreement and to restore the property conveyed by such agreement to the plaintiffs and that such property could not be reduced in value by the proving of claims, or otherwise, as in a will case. We have nothing to do with the status of plaintiffs. For the purposes of the demurrer, plaintiffs have the absolute right of ownership of the property.

Surely neither the Supreme Court, nor any other court, would say that the record did not consist of the allegations of fact in the petition, when a demurrer was sustained to such petition. If that should be the ruling, the amount in dispute could never be shown, no matter if the petition alleged the value of the property to be in any amount whatever. Such value must be taken as the amount in dispute. No...