Winslow v. Sauerwein

• Decision Date: 12 September 1955
• Docket Number: No. 44708,No. 2,44708,2
• Citation: 365 Mo. 269,282 S.W.2d 14
• Parties: Edward A. WINSLOW and Bernice L. Winslow, his wife, Appellants, v. Richard SAUERWEIN, and Joan Sauerwein, his wife, Respondents
• Court: Missouri Supreme Court

Page 14

282 S.W.2d 14

365 Mo. 269

Edward A. WINSLOW and Bernice L. Winslow, his wife, Appellants, v. Richard SAUERWEIN, and Joan Sauerwein, his wife, Respondents.

No. 44708.

Supreme Court of Missouri, Division No. 2.

Sept. 12, 1955.

Hale W. Brown, Kirkwood, for appellants.

Meyer, Hoester & Coleman, Clayton, for respondents.

STORCKMAN, Judge.

This suit in quity was brought by the plaintiffs to enjoin the defendants from using and trespassing upon a thirty foot strip of ground adjoining the east side of plaintiffs' Lot No. 5 in Hillcrest No. 3, a subdivision in St. Louis County. The defendants filed an answer and counterclaim and the case was tried by the court. Judgment was rendered dismissing both plaintiffs' cause of action and defendant's counterclaim. The plaintiffs were allowed a delayed appeal to the St. Louis Court of Appeals, which court held that title to real estate was involved and transferred the case to this court. See Winslow v. Sauerwein, Mo.App., 272 S.W.2d 836.

The amended petition upon which the case was tried consisted of two counts. The first count was substantially the same as the original petition and alleged that the disputed strip was set aside as a private street by those who platted the subdivision and that the plaintiffs were owners in fee simple of that portion of the thirty foot strip east of plaintiffs' lot No. 5. Count II (more fully explained later) claimed only an easement in the disputed strip. Defendants' counterclaim alleged that the thirty foot strip in dispute was an open and public street; that the plaintiffs and the other abutting property owners did not have any right, title or interest in it, and prayed that judgment be rendered declaring the disputed tract to be an open and public street, and further prayed that the 'Court ascertain the rights of all parties to this Cross Petition.'

The judgment of the trial court dismissing plaintiffs' bill and defendants' counterclaim is as follows:

'This cause having been heretofore submitted to the Court upon the pleadings, evidence and proofs adduced, and the Court having seen and heard the same and being now duly and fully advised of and concerning the premises, finds the issues herein joined in favor of the defendants and against the plaintiffs on Count I and Count II of plaintiffs bill in equity and dismisses plaintiffs' bill in equity, and the Court further finds the issues in favor of plaintiff and against defendants Sauerwein on said defendants counterclaim. Wherefore, it is ordered and adjudged by the Court that plaintiff's bill in equity be and is hereby dismissed, and that defendants Sauerwein take nothing by their counterclaim herein against plaintiffs and that said defendants go hence without day and with their costs herein incurred. Memorandum of Court filed.'

The memorandum referred to in the judgment is as follows:

'After hearing the evidence, reading and considering the briefs and authorities, bearing upon the questions involved, the Court finds as follows:

'1. That plaintiffs are the owners by the entirety of Lot 5 of Hillcrest No. 3, according to plat recorded in Plat Book 30, page 103.

'2. That plaintiffs do not own the fee of the thirty-foot strip in front of their lot, but merely have an interest or easement therein, in common with others similarly situated, to use the same for ingress and egress to their property, above described.

'3. That the thirty-foot strip is not a public street, but a private right-of-way.

'4. That no single owner, alone, of any lot abutting on said right-of-way thirty-feet wide, can maintain a suit of this nature under the circumstances in this case.

'5. That in view of the above, neither plaintiffs Winslow nor defendants Sauerwein (on their counter-claim) can recover, and judgment will be entered accordingly today.'

Plaintiffs' motion for new trial was limited to Count II of plaintiffs' petition. The only relief the motion sought was to set aside the judgment and decree 'herein rendered in favor of defendants and against these plaintiffs on Count II of plaintiffs' petition.' Defendants did not file a motion for new trial, nor did they appeal.

For the purpose of determining the questions involved on this appeal, Count I of plaintiffs' petition and the defendants' counterclaim must be disregarded. The issues made by those pleadings have gone out of the case completely because no allegations of error with respect to their disposition were presented to the trial court by motions for new trial. Section 512.160 RSMo 1949, V.A.M.S., provides that 'no allegations of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court.' Rule 3.23 of the Rules of the Supreme Court, 42 V.A.M.S., is even more definitive. Insofar as is pertinent here, Rule 3.23 provides 'Allegations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for new trial'. The St. Louis Court of Appeals recognized, in the recent case of Wright v. Ickenroth, Mo.App., 215 S.W.2d 43, that it cannot pass upon matters not relied on in the motion for new trial.

The appellate jurisdiction of the supreme court is determined by the kind of questions properly preserved and presented for review and such questions are not necessarily the same as those contested in the trial court and determined by its judgment. For example, a failure to raise a constitutional question in a motion for new trial waives such question and it cannot be presented for the first time in appellant's brief. State ex rel. Wallach v. Oehler, 348 Mo. 655, 154 S.W.2d 781. The review may be further limited by a failure to mention a constitutional question in the appellate briefs. McGuire v. Hutchison, 356 Mo. 203, 201 S.W.2d 322. The same rule, of course, applies to all grounds upon which the appellate jurisdiction of the supreme court depends, such as the amount in dispute, Lemonds v. Holmes, Mo., 229 S.W.2d 691, and questions involving title to real estate, Pursley v. Pursley, Mo., 213 S.W.2d 291. In the latter case the court stated, 213 S.W.2d 291, 292-293: 'Plaintiff did not appeal and the supposed issue of title tendered by the pleadings dropped out of the case.'

It is not necessary to determine whether Count I of plaintiffs' amended petition or the defendants' counterclaim involved questions of title to real estate, because the issues raised by these pleadings have not been preserved for review. Shanks v. St. Joseph Finance & Loan Co., Mo., 163 S.W.2d 1017, 1019.

In order to determine if title to real estate is involved, we must look to the more limited subject matter of Count II of plaintiffs' amended petition which alleges in substance: Plaintiffs as husband and wife are owners of Lot 5 of Hillcrest No. 3 by reason of a warranty deed duly recorded July 18, 1940; that plaintiffs' immediate predecessors in title, being the owners of all the lots in Hillcrest No. 3, carved thirty feet from the eastern side of Lots 1, 2, 3, 4, 5 and 6, and made a private dedication of the strip so carved; that plaintiffs and other owners of lots in Hillcrest No. 3 have used the private street sometimes referred to as Hillcrest Place as tenants in...