Walker v. Walker

• Decision Date: 22 May 1906
• Citation: 96 S.W. 418,119 Mo. App. 503
• Parties: WALKER v. WALKER.
• Court: Missouri Court of Appeals

96 S.W. 418

119 Mo. App. 503

WALKER v. WALKER.

St. Louis Court of Appeals. Missouri.

May 22, 1906.

APPEAL — ORDER REMANDING CAUSE TO JUSTICE'S COURT — APPEALABILITY.

Under Rev. St. 1899, § 806, authorizing appeals from any final judgment, an order of the circuit court remanding a cause transferred to it by a justice of the peace, entered under the authority of section 3951, authorizing the circuit court to remand to the justice a cause which has been transferred as involving title to land, where the court is of the opinion that the statement filed does not show that title is in issue, is not a final judgment, and is not appealable.

Appeal from Circuit Court, Madison County; Jas. E. Hazell, Judge.

Action by David Walker against John A. Walker. From an order overruling a motion for a rehearing of an order remanding a cause to a justice of the peace, defendant appeals. Appeal dismissed.

B. B. Cahoon and D. N. Tessereau, for appellant. R. A. Anthony and H. Clay Marsh, for respondent.

GOODE, J.

Plaintiff instituted this replevin action to obtain possession of six and one-half stacks of timothy hay, alleged to be standing in two fields on plaintiff's farm on the St. Francis river, in Polk township, Madison county. The locations of the different stacks were more definitely indicated by statements in the complaint. A replevin bond in due form accompanied the complaint, and on the filing of the two documents the justice of the peace issued an order for the delivery of the property and a summons, both of which were served, the hay being taken from the possession of defendant pursuant to the order of delivery, and turned over to plaintiff. Defendant filed a paper styled "Answer, Plea of Title, and Counterclaim" before the justice. This pleading admitted the hay to be of the value alleged in the petition, denied every other allegation therein, averred that defendant had been damaged by the taking and detention of the hay in the sum of $200, for which, with costs, he asked judgment against plaintiff and the sureties on the latter's replevin bond. After pleading those matters, the answer set up facts going to show that the equitable estate in the farm where the hay was grown and harvested was vested in the defendant. The substance of the facts alleged regarding the ownership of the farm are that in February, 1891, plaintiff gave to defendant, who is plaintiff's son, the entire right, title, and interest in the farm which plaintiff held, put defendant in full and complete possession in consideration of love and affection, and in further consideration of past valuable service rendered by defendant, and agreed if defendant would go into possession of the real estate, clear, fence, cultivate, live on, and improve the same, that defendant should have and own the said farm, and that it would be conveyed to defendant as soon as plaintiff secured a pension from the United States Government and paid certain debts he owed; that plaintiff afterwards, and prior to the institution of this action, secured the pension, and with defendant's assistance paid off his debts. It is averred that, pursuant to this agreement, defendant took possession of the farm, cleared a portion of it, and erected improvements on it, which are stated, and the cost of each; the total expense being considerable. It is averred further that thereby defendant became entitled to have the farm conveyed to him, but plaintiff had refused to convey it. The paragraph concluded with a prayer that the cause be transferred by the justice of the peace to the circuit court for hearing and final determination, and that the latter court compel plaintiff to specifically perform his agreement regarding the...