Rothrock v. Cordz-Fisher Lumber Co.

• Decision Date: 15 November 1898
• Citation: Rothrock v. Cordz-Fisher Lumber Co., 47 S.W. 907, 146 Mo. 57 (Mo. 1898)
• Parties: ROTHROCK v. CORDZ-FISHER LUMBER CO.
• Court: Missouri Supreme Court

47 S.W. 907

146 Mo. 57

ROTHROCK v. CORDZ-FISHER LUMBER CO.

Supreme Court of Missouri, Division No. 1.

November 15, 1898.

SUPREME COURT — JURISDICTION — TITLE TO REALTY — TRESPASS.

An action of trespass to recover damages for cutting and removing trees from plaintiff's land, where the title to the land is a collateral issue, does not involve "the title to the real estate," within Const. art. 6, § 12, so as to give the supreme court jurisdiction of an appeal.

Appeal from circuit court, Shannon county; W. N. Evans, Judge.

Action by James Rothrock against the Cordz-Fisher Lumber Company. From a judgment for plaintiff, defendant appeals. Appeal transferred.

James Orchard, for appellant. John C. Brown, for respondent.

BRACE, P. J.

This is an action instituted in the circuit court of Shannon county to recover the sum of $1,200 damages of the defendant, for cutting down, removing, and converting to its own use 2,500 pine trees and 700 oak trees, standing and being on a certain tract of land described in the petition, of which it is therein alleged that the plaintiff is the owner, in which the plaintiff obtained judgment in said court for the sum of $300, from which judgment the defendant appeals to this court.

This action does not involve the title to real estate, within the meaning of the constitution, and the appeal should have been taken to the St. Louis court of appeals. In the recent case of Price v. Blankenship, 144 Mo. 203, 45 S. W. 1123, Marshall, J., after reviewing the decisions to date on this head, expressed the doctrine of this court upon this subject in the following language: "It is now firmly settled that to give this court jurisdiction under section 12 of article 6 of the constitution, because the title to real estate is involved, it must appear that the title to real estate will in some way be directly affected by the judgment to be rendered in the case. It is not sufficient that the question of title may be incidentally, collaterally, or necessarily inquired into, to settle the issues. The judgment to be rendered must directly affect the title itself to the real estate. If the judgment rendered by the lower court could be satisfied by the payment of money, without affecting the title to real estate, the case would not fall within our jurisdiction, under this provision of the constitution." Under the Code of this state, "the action of trespass is strictly personal." Railroad Co. v. Mahoney, 42 Mo. 467. As Wagner, J., who delivered...