Springfield S. W. Ry. Co. v. Schweitzer

• Decision Date: 30 November 1912
• Citation: 151 S.W. 128,246 Mo. 122
• Parties: SPRINGFIELD S. W. RY. CO. v. SCHWEITZER et al.
• Court: Missouri Supreme Court

151 S.W. 128

246 Mo. 122

SPRINGFIELD S. W. RY. CO. v. SCHWEITZER et al.

Supreme Court of Missouri. Division No. 1.

November 30, 1912.

1. APPEAL AND ERROR (§ 23) — JURISDICTION OF SUBJECT-MATTER — OBJECTION UNNECESSARY.

The Supreme Court will determine its jurisdiction of the subject-matter in condemnation proceedings, though no question thereon is raised by counsel.

2. COURTS (§§ 24, 37) — JURISDICTION OF THE SUBJECT-MATTER — WAIVER.

Jurisdiction of the subject-matter can neither be waived nor conferred by consent of the parties.

3. COURTS (§ 231) — SUPREME COURT — JURISDICTION.

A judgment appealed from must involve title to real estate directly, and not as a mere incident in order to confer jurisdiction on the Supreme Court under the constitutional provision giving such court appellate jurisdiction in cases involving title to real estate.

4. COURTS (§ 231) — SUPREME COURT — JURISDICTION — CONDEMNATION PROCEEDINGS.

Under the constitutional provision giving the Supreme Court appellate jurisdiction in cases involving title to real estate such court may review judgments in condemnation proceedings which involve such title, but cannot review judgments in such proceedings where the amount involved does not confer jurisdiction, or the title to real estate is not involved.

5. COURTS (§ 231) — SUPREME COURT — JURISDICTION — REAL ESTATE — "PERSONAL PROPERTY" — "REAL ESTATE."

An unexpired three-year lease on premises condemned was "personal property," and not "real estate," within the constitutional provision conferring appellate jurisdiction on the Supreme Court in cases involving title to real estate.

6. LANDLORD AND TENANT (§ 70) — LEASE — "CHATTEL REAL."

At common law a term for years created by lease was a "chattel real."

7. LANDLORD AND TENANT (§ 20) — LEASE — "REAL ESTATE."

At common law the term "real estate" did not include a lease.

Appeal from Circuit Court, Polk County; Argus Cox, Judge.

Action by the Springfield Southwestern Railway Company against Jacob C. Schweitzer and the New Phœnix Foundry & Machine Company. From a judgment for the Machine Company, plaintiff appeals. Cause ordered transferred to the Springfield Court of Appeals.

Robert T. Railey, of St. Louis, and Barbour & McDavid, of Springfield, for appellant. John Schmook and T. J. Murray, both of Springfield, for respondents.

LAMM, J.

Defendant Schweitzer was the some time owner of four parcels of real estate in the city of Springfield, for convenience numbered tracts 1, 2, 3, and 4, severally. Tract 3 alone concerns us. Defendant Machine Company was in possession of tract 3 as a tenant of Schweitzer. In the exercise of its delegated right of exercising the power of eminent domain, plaintiff Railway Company brought a condemnation proceeding in the Greene circuit court against Schweitzer, as owner, to condemn all four tracts for railway purposes, and made the Machine Company a party defendant. Such steps were ultimately taken in that case that, from a judgment in favor of Machine Company, plaintiff Railway Company appeals.

Schweitzer does not appeal from the final judgment; nor does the Machine Company appeal therefrom; nor does the Railway Company appeal from that part of the judgment relating to Schweitzer. The controversy therefore narrows itself, on appeal, to one between the Railway Company and the Machine Company.

On December 31, 1904, Schweitzer let tract 3 to the Machine Company for a one-year term. This lease was in writing, duly recorded, and gave an option to lessee for an extended term of three years, to begin, at the end of that reserved. On the day before the term ended, the Machine Company exercised its option to extend the term for the three additional years. A writing to that effect was signed up and put of record. There was testimony to the effect (and the court so found) that the Railway Company had notified all the parties concerned, on the day this new lease was signed, that it purposed taking all four tracts by condemnation proceedings. There was testimony from which the fact might be inferred that the extending of the lease was taking time by the forelock by putting Machine Company on a better footing to claim damages; but none of that testimony seems material to the question we have in mind.

The Machine Company was put in possession under its original lease, and was running a foundry and machine shop in some ramshackle buildings on tract 3. This possession was continued into the new term, and, while so in possession, on January 22, 1906, plaintiff sued to condemn all four tracts. The petition is of no consequence on the question we have in mind. It appears the Machine Company lays no claim to any other tract, except No. 3; and as to that its only claim was as tenant for the unexpired part of the additional three-year term. Both defendants, on service of process, filed separate answers. Schweitzer admitted he owned all four tracts in fee simple, and went on to point out that his codefendant, the Machine Company, was in possession of tract 3 (describing it) as his tenant for a term of three years, beginning January 1, 1906. The case rode off below on that theory. To that end the Machine Company filed its answer, setting up its possession of tract 3 under the same lease, and, among other things, claiming damages in the sum of $5,000, on the theory that "the breaking up, interference with, and interruption of, the business" it was conducting on the leased premises, including the injury to its business and loss of profits, amounted to that sum. On the day these answers were filed, the court made the conventional finding of facts, spreading of record conditions precedent to the right to condemn property for railway purposes, etc., and then went on to appoint and instruct three commissioners to assess damages. Presently they reported, assessing damages to the four tracts separately. When they came to tract 3, they reported an award of compensation in the sum of $4,200 (quoting) "to Jacob C. Schweitzer, the owner of said tract, and the New Phœnix Foundry & Machine Company, lessee thereof, as set forth in said petition, and as their interests may appear. * * *" Presently, on notice given of this award and report, Schweitzer and the Machine Company excepted thereto, severally, through separate counsel. Following these exceptions, Schweitzer took down the whole award of $18,200. Subsequently, on the Machine Company's motion, the court ordered him to return to the clerk the $4,200 allowed as compensation and damages for tract 3. It appears he obeyed this order, in part, by returning $2,000. Taken by a change of venue to the Polk circuit court, the cause was reached for trial in 1909. At that time, on the motion of the Railway Company, the Machine Company was ordered to make its claim for damages more specific. This it did in the form of written amendments to its exceptions to the commissioners' report. Thereby it claimed damages, summarized as follows: For removing its business, foundry, and machine shops, comprising sand, iron, patterns, machinery, tools, stock and material, engines and implements, etc., $634.31; damages consequent to said removal in breakage and destruction of articles and machinery so moved, $850; in breaking up, interference with, and injury to, its business, loss of patronage and custom by change of location, $1,000; loss of earnings during the time of removal, $1,000; deprivation of the use and benefits of its leasehold interest during the unexpired term of its lease, $900; loss of its established trade, patronage, and good will at its old stand, $500.

On the filing of these amended exceptions by the Machine Company, Schweitzer formally withdrew his own exceptions by a pleading filed, and thereby he inferentially submitted to...