Rutlader v. Rutlader

• Decision Date: 14 November 1966
• Docket Number: No. 2,No. 52021,52021,2
• Citation: 407 S.W.2d 906
• Parties: James RUTLADER, Respondent, v. Eleanor RUTLADER, Appellant
• Court: Missouri Supreme Court

Page 906

407 S.W.2d 906

James RUTLADER, Respondent, v. Eleanor RUTLADER, Appellant.

No. 52021.

Supreme Court of Missouri, Division No. 2.

Nov. 14, 1966.

J. K. Owens, Kansas City, for respondent.

Edgar J. Keating, Kansas City, for appellant.

STOCKARD, Commissioner.

In this action for divorce the trial court dismissed the plaintiff-husband's petition, and on her cross-bill the court granted the defendant-wife a divorce, the custody of the children, and $17.50 per week for the maintenance of each child. It undertook to grant her another award, subsequently set out and discussed, but did not award her attorney's fees or alimony designated as such. The wife appealed to the Kansas City Court of Appeals, and the case has been transferred to this court on the ground that 'the decree rendered orders a division of real estate, and * * * it directly affects and operates upon the title to real estate in the constitutional sense.'

There was no pleading or prayer by either party that the court render any decree affecting title to real estate. However, in addition to the decree of divorce and the awards of child custody and for child maintenance, the judgment contains this provision: 'It is further ordered and adjudged by the court that defendant (wife) be and she is hereby given one-half of the property when it is sold, together with $270.00 which is her part of the rental until sold.' From the transcript it appears, and we shall assume, that the 'property' referred to is the home in which the parties lived prior to separation, but we cannot determine how title to the home was held, that is, by the entirely or in some other manner. On this appeal neither party asks that the provision in the judgment referring to the 'property' be set aside or changed in any manner. The only points in appellant's brief, quoted in their entirety, are as follows: '1. The court erred in refusing to grant defendant any alimony.' and '2. The court erred in refusing to grant defendant any attorney fees.'

We necessarily conclude that appellate jurisdiction of this case is not in this court. There is no showing that the total of the alimony sought and the attorney fees would exceed $15,000, and we cannot indulge in speculation and conjecture for purposes of assuming jurisdiction. Cotton v. Iowa Mut. Liability Ins. Co., 363 Mo. 400, 251 S.W.2d 246. The only other possible basis for appellate jurisdiction in this court is that it is a case involving the title to real estate within the meaning of Art. V. § 3, Constitution of Missouri, V.A.M.S. It was the opinion of the Kansas City Court of Appeals that it is such a case, and we shall discuss the reasons advanced by that court, and the reasons for our conclusion to the contrary.

The court of appeals cited and relied on numerous cases which state, as did Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 771, that to vest the supreme court with appellate jurisdiction on the basis that title to real estate is involved the 'judgment sought or rendered must be such as will directly determine title in some measure or degree adversely to one litigant and in favor of another; or, as some of the cases must take title from one litigant and give it to another.' Also cited and relied on are cases such as Brewster v. Terry, Mo.App., 172 S.W.2d 5, wherein it is stated in effect that appellate jurisdiction is in this court when the judgment sought or rendered will directly affect or operate upon the title itself. The judgment 'sought' by the parties in this case would not have affected or operated upon the title to real estate, and in any event the husband has not appealed, and by her appeal the wife does not contend that the judgment should have affected or operated upon the title to real estate. Therefore, if appellate jurisdiction is in this court it is because the judgment 'rendered' affected or operated upon the title to real estate. See Watts v. Watts, 304 Mo. 361, 263 S.W. 421, where the judgment rendered in a divorce suit did purport to affect directly the title to real estate, and appellate jurisdiction was held to be in this court on an appeal in which the appellate challenged that part of the judgment affecting title to real estate. The judgment rendered in this case does not direct that the 'property' be sold, or that the wife shall have any interest in the real estate. While it says that she is 'given one-half of the property' that phrase is followed by the words 'when it is sold.' There can be no reasonable meaning attached to this language of the judgment except that the wife is given one half of the proceeds of the sale of the property when it is sold. We do not know whether prior to the divorce the title to the property was in the husband alone or in the husband and the wife by the entirety, but whichever way the title was held the decree does not purport to affect the title or to operate upon the title of the property. It does no more than attempt to direct what shall be done with the proceeds of a sale of the property if and when it is sold by the owner or owners, whoever they are. We are constrained to conclude that the judgment rendered in this case does not affect or operate on the title to real estate.

However, if we should assume that by the above quoted language of the judgment, contrary to our views as to what it means, title to real estate was thereby affected, we still would be forced to the conclusion that appellate jurisdiction is not in this court. The husband has not appealed, and therefore he has consented to that disposition of 'one half of the property.' The wife has appealed but she presents no issue to the appellate court which calls for an adjudication of title directly or indirectly and she asks for no judgment on appeal which would affect or operate on the title to real estate.

Cases may be found in which it is stated that 'appellate jurisdiction over the subject matter is determined upon the record in the trial court at the time the appeal is granted and that nothing subsequently occurring will defeat or confer jurisdiction in this court.' Hunter v. Hunter, 355 Mo. 599, 197 S.W.2d 299, 300. Similar statements may be found in Tant v. Gee, 348 Mo. 633, 154 S.W.2d 745; Hardt v. City Ice & Fuel Co., 340 Mo. 721, 102 S.W.2d 592; Snowbarger v. M.F.A. Central Cooperative, Mo., 317 S.W.2d 390. However, as stated in Hunter v. Hunter, supra, 'This statement of the rule may be too broad if taken literally'. In Feste v. Newman, Mo., 368 S.W.2d 713, this...