State ex rel. Brenner v. Trimble

• Decision Date: 18 November 1930
• Citation: 32 S.W.2d 760,326 Mo. 702
• Parties: The State ex rel. Max Brenner et al. v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

32 S.W.2d 760

326 Mo. 702

The State ex rel. Max Brenner et al. v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

November 18, 1930

Certiorari to Court of Appeals.

Record quashed.

Frank M. Lowe and Ringolsky, Boatright & Jacobs for relators.

(1) Certiorari is a proper remedy where the court to which it is directed either has no jurisdiction or acts in excess or abuse of its jurisdiction. State ex rel. v. Ellison, 272 Mo. 571; State ex rel. v. Nixon, 233 Mo. 345; State ex rel. v. Trimble, 317 Mo. 751; State ex rel. v. Holtcamp, 14 S.W.2d 646; State ex rel. v Williams, 310 Mo. 267. (2) Certiorari is the proper remedy where respondents have failed to follow the latest controlling decisions of this court. To so fail is to act in excess of jurisdiction. State ex rel. v. Reynolds, 257 Mo. 19; State ex rel. v. Broaddus, 245 Mo. 123; State ex rel. v. Broaddus, 238 Mo. 189. (3) Brenner's cross-petition alleges it to be the fact that Babcock is contending Brenner is liable to him under a lease for rent and taxes in excess of $ 100,000. Babcock admitted that the value of the amount in dispute, so far as Brenner was concerned, exceeded $ 7,500, by proclaiming in his petition (without seeking any judgment) that Brenner was liable to him up to August, 1925, for rent and taxes to the amount of $ 8,562.20. By cross-petition Brenner alleged that if he was liable for the $ 8,562.20, he was liable also for rent and taxes yet to accrue on the lease in an amount exceeding $ 100,000. He alleged he was not liable for any of it, asked to be relieved of this alleged liability and that the question of his liability be settled once and for all time. The court found for Brenner on his cross-petition. The dispute settled by the decree from which Babcock appealed was the dispute set out in Brenner's cross-petition -- that is, over cancellation of a $ 100,000 liability. Exclusive jurisdiction of an appeal from that dispute is in this court. Respondents' distinction between amounts disputed by petition and by cross-petition is unsound and arbitrary. (4) Where defendant counterclaims in excess of $ 7,500 and recovers such amount, this court has exclusive jurisdiction of an appeal taken by plaintiff in such case from such judgment on the counterclaim. Luft v. Strobel, 19 S.W.2d 721; Conrad v. De Montcourt, 138 Mo. 311; State ex rel. v. Lewis, 96 Mo. 146; McCoy v Randel, 222 Mo. 24; Kuh v. Garvin, 53 Mo.App. 64, 222 Mo. 34. See, also, Forster Vinegar Co. v. Guggemos, 24 Mo.App. 444; Rivers v. Blom, 78 Mo.App. 142; Ferguson v. Comfort, 159 Mo.App. 30. (5) As to the cause of action set up in the cross-petition, Brenner was, in fact and in law, a plaintiff and Babcock was a defendant. If Babcock had dismissed his petition, Brenner's cross-petition would still have been pending. Therefore, the cross-petition must be legally measured as though such cause of action had been set up in an original petition. Fulton v. Fisher, 239 Mo. 116; Dorris Motor Car Co. v. Colburn, 307 Mo. 137; Wade v. National Bank, 221 S.W. 364. (6) The amount in dispute on Brenner's cross-petition is the value in money to him of being relieved of the liability fixed by the lease should the relief prayed for be granted. State ex rel. v. Reynolds, 256 Mo. 710; Aufderheide v. Ice & Fuel Co., 319 Mo. 337; Brick Co. v. Smelting & Refining Co., 48 Mo.App. 634. (7) The amount in dispute is to be ascertained from the entire record -- not merely plaintiff's petition. Perkins v. Silverman, 223 S.W. 903; Kitchell v. Ry. Co., 146 Mo. 455; State ex rel. v. Rombauer, 130 Mo. 288. See, also, Gartside v. Gartside, 42 Mo.App. 513. (8) That the proper appellate court may, on ultimate consideration, deem the facts pleaded in the cross-petition do not in law justify affirmative equitable relief by way of cancellation and injunction, does not eliminate the necessity of previous ascertainment of the amount in dispute. The only court that has jurisdiction to determine that the facts alleged in the cross-petition do not justify the relief prayed and obtained, is the court which has jurisdiction of the appeal involving the amount there disputed. Right or wrong, Brenner obtained a decree worth, on the face of the record, more than $ 7,500 to him. Jurisdiction to take the benefits of that decree from him, either by holding the cross-petition did not state facts warranting affirmative relief, or for other error, lies in the court having jurisdiction of an appeal involving that amount. When the amount in dispute is (as it must be) first ascertained, all further consideration of the sufficiency of the pleading on which the relief was obtained or other errors must be by the court having jurisdiction of an appeal involving that amount. Bank v. McGaughey's Estate, 318 Mo. 948; Brown v. Turner, 43 Mo.App. 40; Lowe v. Frede, 151 Mo.App. 569. (9) The fact that the amount in dispute as between Babcock on the one hand and Rieger and Singer on the other is less than $ 7,500 is immaterial. State ex rel. Commonwealth Trust Co. v. Reynolds, 278 Mo. 695; Snoqualmi Realty Co. v. Moynehan, 179 Mo. 269; Sandusky v. Sandusky, 265 Mo. 219.

Henry S. Conrad, L. E. Durham and Hale Houts for Sherrill Babcock.

(1) Questions here for determination: (a) Should the court, contrary to our belief and insistence, hold that the appeal was within the jurisdiction of this court rather than of the Court of Appeals, then the case is here for determination of all questions raised upon the appeal. State ex rel. v. Daues, 315 Mo. 32; State ex rel. v. Reynolds, 278 Mo. 695. (b) On the other hand should the court agree with the Court of Appeals that the appeal was within the jurisdiction of that court, then there is involved not the entire record of the Court of Appeals but merely that part of its opinion relating to the question whether the case was one at law or in equity. State ex rel. American Mfg. Co. v. Reynolds, 270 Mo. 602; State ex rel. v. Reynolds, 284 Mo. 386; State ex rel. v. Trimble, 20 S.W.2d 20; state ex rel. v. Kansas City, 20 S.W.2d 7. (2) The Court of Appeals had jurisdiction of appeal. (a) Regardless of the amount of possible liability of Brenner under the lease, Brenner's interest and liability was not so involved as to determine the jurisdiction of the appeal, and the Court of Appeals correctly so held. Ferguson v. Comfort, 264 Mo. 274; McGregory v. Gaskill, 317 Mo. 122; Joe Dan Market v. Wentz, 13 S.W.2d 644; St. Joseph v. Georgetown Lodge, 8 S.W.2d 981; Bondurant v. Mills, 294 S.W. 742; Green v. Conrad, 114 Mo. 651; Ward v. School District, 7 S.W.2d 689; Cooper v. Armour & Co., 6 S.W.2d 567; Wilson's Estate, 8 S.W.2d 973; Wright v. Ins. Co., 19 F.2d 117; Mutual Life Ins. Co. v. Wright, 276 U.S. 602. (b) Brenner's maximum possible liability was conclusively limited on the whole record to less than $ 7,500. Nor was there any evidence that any sum whatever could have been collected by the plaintiff from Brenner or that the cancellation of the lease was of any monetary value. Ferguson v. Comfort, 264 Mo. 274; McMannus v. Clothing Co., 60 Mo.App. 216; Elliott v. Janett, 64 Mo.App. 252; Vanderberg v. Gas Co., 199 Mo. 460; Ward v. School District, 7 S.W.2d 689; Wall v. Gas Co., 235 S.W. 161; Germo Mfg. Co. v. Combs, 229 S.W. 1072.

OPINION

Ragland, J.

Certiorari. In the case of Sherrill Babcock, plaintiff, v. A. E. Rieger, Louis Singer and Max Brenner, defendants, an appeal was allowed plaintiff from a judgment returned in favor of defendants, in the Circuit Court of Jackson County, to the Kansas City Court of Appeals. The Court of Appeals on hearing and submission reversed the judgment of the circuit court and remanded the cause. The relators, the defendants in the original proceeding, ask to have quashed the record of the Court of Appeals, on the ground that that court was wholly without jurisdiction of the appeal. The question of jurisdiction is to be resolved by determining whether "the amount in dispute . . . exceeds the sum of seven thousand five hundred dollars."

The suit just referred to was instituted by plaintiff Babcock, against Rieger and Singer on December 8, 1925. The petition, so far as pertinent here, was as follows:

"That on the 1st day of August, 1922, plaintiff, in writing, leased said premises to one Max Brenner, for a period of ten years beginning August 1, 1922, for a yearly rental of twelve thousand ($ 12,000) dollars per year for the first six years, payable one thousand ($ 1,000) dollars per month, and at a yearly rental of fifteen thousand ($ 15,000) dollars per year for the remaining four years, payable twelve hundred and fifty ($ 1250) dollars per month; said monthly payments to be made in advance; that by said lease said Brenner agreed in writing to pay said rent aforesaid and to pay, during the term of said lease, all real estate taxes upon said property, both general and special.

"Plaintiff further states that, in consideration of the granting of said lease to said Brenner by plaintiff, defendants did by a writing attached to said lease, and executed contemporaneously therewith, guarantee and agree that they would jointly and severally guarantee that said Brenner would pay said installments of rent and taxes when due to plaintiff as lessor, and that in default of such payment by said Brenner that they would pay said rent or taxes to an amount not to exceed six thousand ($ 6,000) dollars, during the first six years of said lease upon written notice of any such default given to them by plaintiff.

". . . that there became due, under the terms of said lease, from said Brenner to plaintiff, installments of rent for the months of January, February, March, April May, June and July, of the year 1925, at one thousand ($ 1,000) dollars per month, and that there...