Schwyhart v. Barrett

• Decision Date: 27 November 1909
• Parties: SCHWYHART v. BARRETT et al.
• Court: Missouri Supreme Court

122 S. W. 1049

223 Mo. 497

SCHWYHART v. BARRETT et al.

Supreme Court of Missouri, Division No. 1.

November 27, 1909.

1. APPEAL AND ERROR (§ 21) — JURISDICTION — SUPREME COURT — CONSENT OF PARTIES.

Consent of the parties cannot give the Supreme Court jurisdiction of the action, if it does not in fact have jurisdiction.

2. COURTS (§ 231) — SUPREME COURT — JURISDICTION — CONSTITUTIONAL QUESTIONS.

That the trial court misconstrued the act of Congress as to the removal of causes, or erroneously decided that a defendant was not entitled to remove the cause under the facts presented in the petition, would not draw into question the validity of the act of Congress (Act March 3, 1875, c. 137, § 2, 18 Stat. 470 [U. S. Comp. St. 1901, p. 509]), within Const. art. 6, § 12 (Ann. St. 1906, p. 218), giving the Supreme Court jurisdiction, where the validity of a statute of, or authority exercised under, the United States is drawn into question, so that the Supreme Court would not have jurisdiction of an appeal from its decision.

3. COURTS (§ 231) — JURISDICTION — SUPREME COURT — "AMOUNT IN DISPUTE" — INTEREST ON JUDGMENT.

Act June 12, 1909 (Acts 1909, p. 397), which contains an emergency clause, gives the Courts of Appeals jurisdiction of cases where the amount in dispute, exclusive of costs, shall not exceed $7,500; they having theretofore had jurisdiction only where the amount in dispute did not exceed $4,500. Held, in view of other language in the act directing the transference of causes pending in the Supreme Court, showing that it was intended to apply where appeals had been taken years before, that the amount in dispute was to be determined as of the date the judgment appealed from was rendered, and not the passage of the act, so that, where the amount of the judgment appealed from was $7,500, interest to the time of the passage of the act could not be added to enable the Supreme Court to retain jurisdiction of the appeal; interest not being a part of the "amount in dispute," but an incident of the judgment added by operation of the law.

For other definitions, see Words and Phrases, vol. 1, pp. 377, 378; vol. 8, p. 7574.]

Appeal from Circuit Court, Daviess County; J. W. Alexander, Judge.

Action by Albert H. Schwyhart against Martin A. Barrett and others. From a judgment for plaintiff, defendants appeal. Cause transferred to the Court of Appeals.

Hicklin, Leopard & Hicklin and Brown & Dolman, for appellants. K. B. Randolph, for respondent.

VALLIANT, J.

Plaintiff sued the defendants, the Chicago, Rock Island & Pacific Railway Company, Martin A. Barrett, Frank Novak, and H. L. Reed, for damages for personal injuries alleged to have been sustained by him through the negligence of the defendants. The negligence of the railway company consisted, as the petition charged, in the negligent acts of the individual defendants, who, it is alleged, were the servants of the railway company operating or directing the operation of its engine and cars which caused the injuries. Plaintiff recovered a judgment against all the defendants for $7,500 on December 14, 1906. from which judgment the defendants appealed to this court, and the record was duly lodged here January 19, 1907. At the date of the appeal and the date of the filing of the record here, the amount in controversy was sufficient to give this court jurisdiction; but by an act of the General Assembly approved June 12, 1909 (Acts 1909, p. 397), the Courts of Appeals were given jurisdiction in causes "where the amount in dispute, exclusive of costs, shall not exceed the sum of seventy-five hundred dollars," and by that act all cases within its purview then pending in this court, not under submission, were to be transferred to the proper Court of Appeals to be there heard and determined. Counsel on both sides have agreed that this court has jurisdiction, and insist that it be not transferred; but, of course, consent cannot give jurisdiction of the subject. Counsel for defendants are of the opinion that there is a federal question involved, which gives this court jurisdiction under section 12, art. 6, of our state Constitution (Ann. St. 1906, p. 218); the question being the right of the railway company to have the cause removed to the United States Circuit Court for trial. Counsel on both sides are of the opinion that, in estimating "the amount in dispute" with reference to the act of 1909, interest must be added to the amount of the judgment appealed from, $7,500, from its date, December 14, 1906, to the date of the act of the General Assembly above mentioned, to wit, June 12, 1909, which would raise the sum beyond the jurisdiction by that act conferred on the Courts of Appeals.

1. The federal question: The words used in that clause of section 12, art. 6, of our state Constitution, which gives this court jurisdiction, are: "In cases where the validity of a treaty or statute of or authority exercised under the United States is drawn in question." To give this court jurisdiction under that clause, there must be a question of the validity of a treaty or the validity of a statute or the validity of an authority exercised under the United States. Of course, there is no treaty or statute in question, and the only suggestion is that, by proceeding to try the cause after the petition to remove was filed, the validity of an authority exercised under the United States was denied. No one has questioned the validity of the act of Congress under which the application for removal was made, or that the cause should have been removed if it was one which under the terms of that act was removable. Act Cong. March 3, 1875, c. 137, § 2, 18 Stat. 470 (U. S. Comp. St. 1901, p. 509). Even if the state court had misconstrued the act, the misconstruction would not have drawn in question its validity. In Vaughn v. Wabash R. R. Co., 145 Mo. 57, 46 S. W. 952, the defendant pleaded as a defense a compliance with a section of the interstate act of Congress, which compliance was denied in the reply. The court said: "The validity of that federal statute was not drawn in question. The reply put in issue the averment of compliance with the law, not its validity." In White L. S. Com. Co. v. Railway Co., 157 Mo. 518, 57 S. W. 1070, the court said: "While by the Constitution exclusive appellate jurisdiction is vested in this court in cases where the validity of a statute of the United States is drawn in question (article 6, § 12), we know of no constitutional provision vesting such exclusive jurisdiction in this court in cases merely involving the construction of a federal statute." In Carey v. Schmeltz, 221 Mo. 133, 119 S. W. 946, where the right of action was based on a statute of Colorado, it was claimed by appellant that a federal question was involved, because the trail court having construed the Colorado statute to be a penal statute refused to enforce it, thereby refusing to give full faith and credit to the public act of another state as required by section 1, art. 4, of the Constitution of the United States; but this court held in that case that, even if the trial court had misconstrued the statute and had based its judgment on such misconstruction, yet it did not question the validity of the statute, and ...