Snodgrass v. Copple
| Citation | 101 S.W. 1090,203 Mo. 480 |
| Parties | SNODGRASS, Appellant, v. COPPLE et al |
| Decision Date | 29 April 1907 |
| Court | United States State Supreme Court of Missouri |
Appeal from Livingston Circuit Court. -- Hon. J. W. Alexander Judge.
Transferred to Kansas City Court of Appeals.
D. E Adams for appellant.
J. M Davis & Sons for respondents.
OPINION
In Banc
This cause comes before us at this time on a motion to transfer it to the Kansas City Court of Appeals. The appeal was taken to this court on the theory that title to real estate was involved; if that theory is not correct, then since there is no other issue in the case to bring it within the jurisdiction of this court, we have no jurisdiction of it and the motion to transfer must be sustained.
This is the case: Execution issued on a judgment in favor of plaintiff against defendant and it was by the sheriff levied on certain real estate which the defendant claimed to be exempt from execution because it was his homestead; defendant moved to quash the levy, plaintiff in opposition contended that defendant had abandoned the premises as a homestead. The court heard evidence pro and con and found the issue in favor of defendant, adjudging that the real estate in question was the homestead of defendant and therefore sustained the motion to quash the levy. From that judgment this appeal was taken by the plaintiff.
Is title to real estate involved?
In Price v. Blankenship, 144 Mo. l. c. 203, 45 S.W. 1123, it was said: "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," and that rule we have repeated several times since and we still adhere to it. Unless, therefore, title to real estate will be directly affected by the judgment to be rendered in this case this court has no jurisdiction of the appeal.
There is no doubt but that the judgment to be rendered will be a direct adjudication of the defendant's claim of a homestead in the real estate covered by the levy; as between him and the plaintiff it will determine whether or not he had a right to hold the property exempt from the plaintiff's execution. If right to exemption under the Homestead Statute is title to real estate, then title to real estate is involved in this suit, otherwise not.
There have been several cases before this court in which this question has appeared but it appears in more direct form in this case than in any previous one. Perhaps it will help to elucidate the subject to make a brief reference to the former cases.
McAnaw v. Matthis, 129 Mo. 142, 31 S.W. 344, came up for review of an order of the circuit court sustaining a motion to set aside a sale of real estate under execution. It was a money judgment rendered by a justice of the peace, appeal to the circuit court, appeal dismissed, return of execution in justice's office by the constable nulla bona, transcript of justice's judgment filed in the office of the circuit clerk, execution from that office, levy and sale of the real estate by the sheriff; the motion to quash the levy and sale was on several grounds going to challenge the validity of the judgment of the justice, the lack of authority in the circuit clerk to issue the execution, and that no notice of the issuance of the execution was served on the defendant. This court decided that the judgment of the justice was valid, that the execution issued in conformity to the law and that no notice to defendant of its issuance was necessary, he being a non-resident of the county, and therefore the motion to set aside the sale should be overruled. Thus we see there was no question of title to real estate in that case at all, the questions were merely as to the validity of the justice's judgment, the regularity of the proceedings and the necessity of notice. The defendant's real estate was only incidentally affected as it might have been by any money judgment rendered against him. The appeal in that case had in the first instance been taken to the Kansas City Court of Appeals and that court sent it here on the idea that title to real estate was involved, and when here no question as to jurisdiction was raised by the counsel and there is no discussion of the subject in the opinion. The taking of jurisdiction of the case by this court appears to have been an oversight. That case was decided in Division No. 1 of this court.
St. Louis Brewing Association v. Howard, 150 Mo. 445, 51 S.W. 1046, was also a case in which there was no issue which would give this court jurisdiction unless the question of homestead or no homestead was one involving title to real estate, yet this court, Division No. 1, entertained jurisdiction of the case, citing McAnaw v. Matthis as authority for so doing. In that case there was a motion to set aside and quash a sale of over 400 acres of land under execution, on the ground that defendant was entitled to a homestead in it. The jurisdiction of the court was not challenged and there was no discussion of the subject.
Afterwards, Stinson v. Call, 163 Mo. 323, 63 S.W. 729, came before Division No. 2, involving only a question of homestead exemption and the court in deference to what was said in McAnaw v. Matthis entertained jurisdiction, but there was no question of jurisdiction raised in the case and no discussion of the subject. There was this difference, however, between the last-cited case and the one first cited; in the later case the trial court had sustained the motion to set aside the sale of the land under execution on the ground that the land was the defendant's homestead. This court on review of the case held that the defendant did not have a homestead in the land, but affirmed the judgment setting aside the sale under execution on another ground. The motion to set aside that sale is not fully set out in the report but if it fairly tendered the issue of homestead or no homestead and if the judgment of the court was directly responsive to that issue there was a jurisdictional question in the case that distinguished it from the McAnaw-Matthis case and would bring it very close to the facts of the case at bar.
In State ex rel. Reed v. Elliott, 180 Mo. 658, 79 S.W. 696, the judgment was for city taxes on certain land of defendant in the sum of $ 76.82 and the same was declared to be a lien on the land. After execution and sale the defendant at a subsequent term moved to set aside the judgment and the sale on certain grounds specified, the motion was overruled and an appeal was taken to the Kansas City Court of Appeals, that court sent the cause here on the ground that title to real estate was involved. But this court was of the opinion that notwithstanding a lien on the land was declared yet there was no title to real estate involved and therefore returned the case to the Court of Appeals. The court in that case, Division No. 1, said: "And the reason is that in all such cases the title is necessarily conceded to be in the defendant, for otherwise the plaintiff would not be entitled to a lien against the land in that suit, and therefore no judgment that could be rendered in the case could divest the title out of the defendant." In the course of the opinion in that case McAnaw v. Matthis is discussed and overruled.
Lawson v. Hammond, 191 Mo. 522, 90 S.W. 431, was certified to this court by the St. Louis Court of Appeals under the authority of McAnaw v. Matthis, on the idea that title to real estate was involved. In that case a general execution had issued on a money judgment against the defendant and the sheriff had levied the same on a tract of fifty-three acres of defendant's land on which, according to the motion, there was an incumbrance of $ 800 and in which also the defendant claimed a homestead exemption. The defendant moved to quash the levy on the grounds that he was entitled to a homestead in the land, and that he had requested the sheriff to appoint commissioners to set aside his homestead but the sheriff refused. The trial court heard the evidence, found that the defendant was entitled to a homestead and sustained the motion to quash the levy. This court held that title to real estate was not involved in that case and for that reason returned it to the St. Louis Court of Appeals. In the opinion in that case McAnaw v. Matthis is again discussed and disapproved and Stinson v. Call, supra, which followed the McAnaw case was also overruled.
The difference between Lawson v. Hammond and this case is that there the defendant in execution claimed not that all the land levied on was his homestead but that he was entitled to a homestead in the land, that he had requested the sheriff to appoint commissioners to set it off to him but the sheriff had refused the request and was proceeding to sell the whole tract; the plaintiff in execution denied the alleged facts in which the claim of homestead was founded, the trial court found that issue for the defendant and quashed the levy. In that case although in the issues of fact joined on the motion there was a question of homestead or no homestead yet that motion would have been sustained or overruled without a final adjudication that a particular piece of real estate was or was not the defendant's homestead.
In Moore v. Stemmons, 192 Mo. 46, 90 S.W. 434, there was a motion to quash an execution on the grounds that the judgment was void, that the peculiar title of defendants as trustees was not subject to sale for plaintiff's debt, that the title was held by defendants in trust for the Methodist Episcopal Church of the United States and not for the...
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