Wuertenbaecher v. Feik

• Decision Date: 25 March 1931
• Docket Number: 29301
• Citation: 36 S.W.2d 913
• Parties: WUERTENBAECHER et al. v. FEIK et al
• Court: Missouri Supreme Court

36 S.W.2d 913

WUERTENBAECHER et al. v. FEIK et al

No. 29301

Supreme Court of Missouri, Second Division

March 25, 1931

William Zachritz, of St. Louis, for appellants.

Grimm & Mueller, of St. Louis, for respondents.

OPINION

WESTHUES, C.

Plaintiffs in this cause filed a petition in the circuit court of the city of St. Louis, stating, in substance, that they are the owners of certain real estate described in the petition and occupied by them as their home; that defendants own certain real estate adjoining the plaintiff's property. Plaintiffs then plead certain building restrictions contained in the deeds, through which both plaintiffs and defendants derived their titles. The restrictions pleaded provided, in substance, that but one building shall be erected or placed on the lots conveyed, and such building shall never be used or occupied for any purpose except for that of private residence exclusively, not shall such building be arranged or ever used or occupied as flats. Plaintiffs further plead that the defendants have served written notice on plaintiffs that defendants intend to alter their one-family residence so as to make it suitable for a two-family residence. The prayer of the petition is as follows: 'Wherefore, plaintiff prays that an order issue forever enjoining and restraining defendants from making such alterations or change in the structure of defendants' said building which would make it suitable or adaptable for use as a two-story flat building, and forever enjoining and restraining the use of said building for such purpose or any purpose except that of a private residence and for such other and further orders as to the Court may seem meet and proper.'

Defendants in their answer plead, in substance, to avoid the provision of the building restriction, that a large part of the property originally covered by the restriction, or one similar thereto, has been released; that the character of the buildings in the neighborhood have changed from one-family residences only to flats and apartment buildings. Defendants further plead that the original plan has been abandoned for many years.

The trial court, after a hearing and trial. granted plaintiffs an injunction as prayed for in their petition. An appeal was allowed to the Supreme Court.

The judgment in this case is responsive to the pleadings. It in no way affects or involves the title to real estate. No money judgment was asked for or granted. Under these circumstances this court does not have appellate jurisdiction. The appeal should have been granted to the St. Louis Court of Appeals. Toothaker v. Pleasant, 315 Mo. loc. cit. 1246 288 S.W. 38; Platt v. Parker-Washington Co., 235 Mo. 467, 139 S.W. 124; Heman v. Wade, 141 Mo. 598, 43 S.W. 162; Zimmerman v. Railroad, 227 Mo. 346, 126 S.W. 1030. In volume 15 C. J., page 1085, we find the following: 'The constitution gives the supreme court appellate jurisdiction where the title to real estate is involved. In order for the court to take jurisdiction on this ground, the title to such real estate must be actually and directly involved, by which is meant that the judgment rendered on the entire case as made by the pleadings and the evidence will in some way affect the title to real estate, and that this will result from the litigation directly and without any subsequent proceeding; and the fact that such title is incidentally involved is not sufficient.' The above quotation from Corpus Juris refers to the jurisdiction of the Missouri Supreme Court, and only Missouri cases are cited.

Neither plaintiff nor defendant have questioned the jurisdiction of this court. This question, however, may be raised by the court on its own motion. Springfield Southwestern Railroad Co. v. Schweitzer, 246 Mo. 122, 151 S.W. 128; Toothaker v. Pleasant, 315 Mo. loc. cit. 1245, 288 S.W. 38; Section 1915, R. S. Mo. 1929.

Cases involving similar issues, some of which have been cited by the appellants and the respondents in this case, have been decided...