The State v. Zinn

• Decision Date: 09 November 1897
• Citation: 42 S.W. 938,141 Mo. 329
• Parties: The State v. Zinn, Appellant
• Court: Missouri Supreme Court

42 S.W. 938

141 Mo. 329

The State v. Zinn, Appellant

Supreme Court of Missouri, Second Division

November 9, 1897

Appeal from Lawrence Circuit Court. -- Hon. J. C. Lamson, Judge.

Appeal dismissed.

Cloud & Davis and Norman Gibbs for appellant.

(1) The acts charged are offenses against the lands of another, and to secure a conviction, the title to real estate is necessarily involved. To secure a conviction, the State must prove that the lands were the lands of another, and also that the accused had no interest therein. (2) As appears in this case there was no controversy as to the acts charged, but the sole contention grew out of the title of a strip of eighteen feet of land lying between the defendant and the prosecuting witness, Hagemeier, upon which the acts were committed; and it became necessary in the progress of the trial to investigate these antagonistic claims. (3) The defendant relied on his record title, and the State relied on a supposed agreement of former owners, as to the boundary between them, and upon such adverse possession as would settle the title on Hagemeier -- both of which contentions were disputed by the defendant. (4) The acts that are prohibited and made criminal by the two sections on which this prosecution is bottomed, are acts against the realty and not acts against the possession. So that the State can not rest upon proof of possession alone, but must prove title out of the defendant.

Edward C. Crow, Attorney-General, and Henry Brumback for the State.

(1) Cases involving title to real estate under section 12 article VI, of the Constitution of the State, are those wherein the title to real estate is the subject-matter of litigation and not such as only indirectly affect or involve some interest in real property. Robertson v Railroad, 18 Mo.App. 187; Swan v. Thompson, 36 Mo.App. 162; State ex rel. v. Court of Appeals, 67 Mo. 199; Bobb v. Wolff, 105 Mo. 52; Corrigan v Morris, 97 Mo. 174; Lemmon v. Lincoln, 130 Mo. 338. (2) "The Constitution does not declare that the jurisdiction exists if a question of title is involved in the trial, but that the case tried must involve the title. We take the provision to mean that the title to real estate must, in some way, be affected by the judgment to be rendered on the entire case as made by the pleadings and evidence. This seems to be the view that this court has uniformly taken." Hilton v. St. Louis, 129 Mo. 391. (3) The utmost possible that appellant can contend for is, that a "question of title was involved in the trial" of the case; and not that any judgment rendered, or possible to be rendered, in the case could or would, in any manner, "affect the title to real estate."

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

On the thirty-first day of August, 1893, the defendant was convicted in the circuit court of Lawrence county, on an appeal from a justice of the peace of said county of malicious trespass in cutting down and destroying a hedge fence, the property of another, and his punishment fixed at a fine of $ 60.

He appealed to the St. Louis Court of Appeals where the judgment of the circuit court was affirmed. State v. Zinn, 61 Mo.App. 476. After the mandate of the court of appeals was received by the clerk of the circuit court of said county, he issued an execution on the judgment against defendant for the amount of the fine, and the costs attending the prosecution amounting in the aggregate to the sum of $ 79.60. The execution was made returnable on the second Monday of February, 1896, that being the first day of the next succeeding term of said circuit court. The execution was directed and delivered to the sheriff of said county, who on the seventh day of January, 1896, levied upon certain lands of the defendant. After the lands had been advertised for sale by the sheriff under the execution, to wit, on the first day of the February term (1896) of said circuit court, defendant filed his motion to quash said execution upon the following grounds, to wit: First. The execution was issued without authority by the clerk. Second. The justice of the peace had no jurisdiction of the cause of action to try and determine the same and render a judgment thereon. Third. The circuit court had no jurisdiction on an appeal to hear and determine said cause and render judgment thereon. Fourth. The St. Louis Court of Appeals had no jurisdiction or power to hear and determine this case on appeal from the circuit court. Fifth. The execution is void and unauthorized by law. On the thirteenth day of February, 1896, said motion was by the court overruled, whereupon def...