*1 “in the office filed district” proposed sewer within the limits of such petition county.” To this of such circuit court of the clerk hearing as to upon, thereon and if a 4) may filed, (Sec. objections dis in the said sewage disposal desirability for “necessity objections, it shall declare all such trict” said court overrules corporation State. We public said sewer district decree raised. objections here open law is to the do not think the court the circuit only “makes not urged the law It is also gives power involved,” but judicial questions final arbiter of all their successors in the first instance appoint supervisors and control over placing “patronage thereafter, thus money” in so large the court sums of expenditure of opinion of party. The an interested disqualify it as .to Supreme States the case the United Court of 1927, is Ohio, 740, 7, Ed. decided Tumey State of L. v. March salary of the In this view. the case cited the as supporting cited imposed fine and the directly affected convicting was tribunal had that the court reversing based the case is fact decision disqualified. such result which interest No pecuniary direct point. decision is not presented case, in this situation is curiae,, they questions in briefs of amici Other are raised already a state of been or relate to either covered in what has said presented this record. facts All denied. concur. above stated the writ is
For the reasons Company, Ice & Fuel et Polar Wave Fred Aufderheide al. v. C. (2d) 4 S. 776. Appellant. W. Banc, en March 1928. Court *3 Foristel, Mudd, Habewicht, Hezel & Blair and Frank X. James T. appellant. Hiemenz for
Glendy B. Arnold for respondents. *7 Foristel, el Frank cl, Habenicht, Mud Hez & James T. Bladr X. reply. appellant Hiemenz for
SEDDON, equity, (re- in plaintiffs C. This is a suit wherein spondents) perpetually enjoin alleged potential, prospec- seek to an tive, anticipated, number, or plaintiffs nuisance. in The are four own, upon, properties and and reside or certain residential on fronting City facing, upon, Penrose and Obear Avenue, Street or city city Louis, Block No. 2485 of St. block bounded on Avenue, by Street, the east Grand on the south Penrose on the Avenue, west Obear and on the north Carter Avenue. It is number) alleged bill, plaintiffs (four petition, or “these bring.this, only request suit in their own but at and behalf, thirty-seven on other property behalf and owners in said residents neighborhood, joined too plaintiffs herein, numerous to be as who irreparable injury damage, similar and and have
are threatened with complaint plaintiffs plain- the same causes of as herein.” One of the plaintiffs brought tiffs that the four of record had the suit testified neigh- syndicate property on behalf of a of individual owners in the forty-three borhood, forty-two some or in number. The defendant (appellant) engaged ais in the of manufactur- corporation business distributing ing quantities. and and retail ice wholesale allege petition present The does not existence of nuisance existing hand, nuisance, but, to abate an seek such other perpetually enjoin commencing seeks to from or com- defendant operation plant pleting and erection, construction of a and build- ing property defendant’s real located the southwest corner City being 2485, of said Block No. northeast corner of Obear petition alleges, substance, Avenue Penrose Street. grounds purely equitable for the relief sought, that has defendant acquired ground City lot of on the southwest corner of Block said sixty No. “not more than feet distant said residences proceeding plaintiffs, of these and is now to erect and construct large building thereon a brick to be used purpose it for the selling manufacturing, storing and ice therein therefrom; . . . that defendant intends to use remainder said lot for the erec- stables, garages, tion of wood sheds and coal bins, to house motor its trucks, wagons, ice and coal horses, mules and to be used in said busi- ness, storage and for coal, bought therein of wood to be by it;” sold plant the successful manufacture of ice said necessarily require operation during “will its all night hours operate same; defendant intends to so that the sale of ice therefrom cannot successfully except carried on in the late hours of night early morning’, hours of the and the defendant in- business; tends to so conduct said that the operation maintenance especially of said daily, during the late hours of the night early morning, bring hours of the to and around said *9 premises, and neighborhood, large into said noisy numbers of motor trucks and wagons, large animal-drawn and numbers of boisterous and and noisy vendors, peddlers, ice fuel teamsters chauffeurs, and by reason of which will there be in and created around premises, said during said hours, loud and disturbing noises and disorder, and profane vulgar loud, language, and will throughout be heard neighborhood; said that in the manufacture of ice in plant, large said quantities necessarily of will used, ammonia be from which fumes and vapors escape will into the air and diffuse through themselves the neighborhood, greatly injuring destroying and vegetation the grow- ing upon premises plaintiffs the of along and the sidewalks of said neighborhood;” process that the of manufacture of ice which defend- planned ant has and in intends to use plant said contemplates the cooling top of system construction of a on or near said build- thirty-five fifty ing, street, and from feet which will above large pipe consist of “a number of coils of iron two three inches length diameter, plain- in and number of which are unknown to tiffs, day a over which constant flow of water will be maintained night through open twenty and that will fall air, some ten or beneath; cooling system feet, receptacle to a that will said be so exposed constructed as be wind from at least three cardinal compass, and as points of the said water over said coils and flows slight particles, into small wind will cause breaks it to form into premises and mists to be carried from said onto the of the injuring property impairing their and plaintiffs, their and use en- thereof; joyment that, making planned ice in the manner de- fendant, large varying number of metal containers of sizes will used, be will frozen, which water be which must emptied and be every night therefrom, handling in order to remove and, the ice containers, early.hours said in the it will morning, metal impossible making great do noises, so without and loud which will throughout neighborhood; be heard that of maintenance necessary horses and mules conducting on said premises, said business, necessarily will produce large quantities refuse of manure and matter, emitting drawing flies and annoying unhealthful and odors neighborhood; said that loading unloading large and quantities coal, kindling premises fire wood and on said bringing and there- large to of trucks, numbers of motor wagons, ice and coal will create on premises large quantities and around dirt, said gasoline dust and fumes, which will neighborhood be scattered over the and into the premises houses and plaintiffs; on the heavy machinery these that will intended to and be-necessary, manufacturing in said ice plant, operation and machinery of said will through- be constant day night, out and will, and thereof, reason make continuous disturbing during rest;” noises the usual hours of erection, operation maintenance plant, said aforesaid, as will, and. fact, in law and constitute a plaintiffs, nuisance to their families adjacent property residents, “(a) owners and other character of plant, the structure and the nature the business carried on therein and thereat, a residential neighborhood, as al- leged herein, will greatly unreasonably destroy depreciate the market value of property plaintiffs; (b) these noises, odors, mists, emanating dust and dirt, operation from the' of said plant and thereby, aforesaid, created great will so as to un- usually disturb quietude the comfort and plaintiffs and the mem- - households, bers of their and to render their homes uninhabitable any with degree reasonable of comfort peace, greatly so sleep disturb rest plaintiffs, the members of their *10 ill homes, their or become them abandon households, as to force prop- inflicting upon plaintiffs and their thereby therefrom, and sick damage.” de- injury The answer of and erty great irreparable and general denial. is a fendant uses and by parties as to the respective
Evidence was adduced surrounding, or con City Block No. and the character of the city neighborhood. dimensions of the territory tiguous, approxi from north to south and approximately 513 feet block are stated, the block mately 315 from to west. As hereinbefore feet east Avenue, by Penrose on south is bounded on the east Grand Avenue, and north Carter Street, west Obear on the on the feet, approximately, of the block is owned The north 150 Avenue. twenty- which been by planing company, upon operated, mill has for a abutting years large mill, yard, a with a longer, planing five or lumber lumber planing on south side Carter Avenue. The mill yard operated prior plaintiffs acquired to the times were located respective properties. The south feet of the their residential ownership the defendant. Prior to defendant’s block is owned part portion of the had been used block, south of the block picture occupied by airdome, moving or outdoor theatre. The an abutting Street, part block, on north side of Penrose south originally hollow, thirty feet in had deep depth, was a hole but “dump” gradually a and was with public been used as filled cans, corner of Grand and ashes other debris. The northeast diagonally from avenues, across the intersection the lumber Carter yard, long which quarry, public is an abandoned has been used as a dumpings filled in with “dump” and has likewise been and debris. gasoline occupy portion A appears and oil station now a of this corner. The southwest corner of Obear Carter avenues oc cupied by shop, ground a and tin the front end of floor furnace display room, being being as a and the rear end as an as used used living quarters sembling with residential or on plant, the second floor. (diagon On the corner of Obear Avenue and Penrose southwest Street ally plant site) building across the intersection from defendant’s is a formerly occupied by saloon, used, perforce now but Vol law, parlor.” stead as a drink At the southeast “soft corner of Street, immediately Obear Avenue Penrose across Penrose Street plaintiff plant site, maintains, defendant’s Aufderheide many years, so used and material which yard, has maintained testimony by 193, in his thus: “I have a lot 59 he described they junk yard. I yard, call a which is a material take contracts to buildings get what put alter material we cannot use and in new building material material and take old to this and at times yard, they lay yards, and sometimes use different there for a while and they it, decayed, they but are not dirt accumulates are service *11 I thing that and use, pay I taxes things to able lumber prefer; I lum yard anything not lumber or am to use as a entitled immediately block yard.” In the yard, but ber contract material Obear Ave yard, the east side of south of Aufderheide’s material on and Kossuth ave extending length of block between Lee nue, company railway large barn, nues, open ear used the street is a storage blocks Approximately two or three a lot for street cars. public Fair city park, known as plant south of defendant’s site shop afore exception furnace tin Ground Park. With the of the abutting Avenue, be mentioned, the west side of Obear lots Street, are either vacant and unim tween Carter and Penrose Avenue property plaintiff proved purposes. The or used for residential half approximately west of the block on occupies the' Aufderheide avenues, Street, and Grand Obear south side of Penrose between improved except yard aforementioned, is with three and, the material building one-story garage two-story buildings, brick- Avitha frame flat extending buildings. plaintiffs flat It is fair betAAeentwo of the respective say photographs properties residential that of their modest, properties that their but nevertheless evidence indicate are attractive, properties. substantial and residential The evidence tends properties to shoAVthat the from two to several blocks distant City occupied by stores, Block No. 2485 vacant lots or are are small family single residences, apartments, proper flats but that such predominantly ties are residential in their uses. There is no evi City 2485, any thereof, part dence that Block or has ever been used any purposes, purpose for residential or for use or than com other any mercial or industrial. Neither is there evidence the record surrounding City any contiguous Block No. or of the prior land, restricted, present tracts OAvners, have been the acts of Avords, occupancy; as to use or in other no there is evidence any properties herein that of the are burdened with aforementioned land, running covenants, restrictive Avith occupancy. as to use or approximately fifty Penrose Street feet wide Obear Avenue is approximately sixty wide. quo. feet So much for locus in
Necessarily, plaintiffs seeking prove since were and establish that yet an ice time, existence be nuisance at some future aaúII largely testimony their evidence consisted respecting of Avitnesses (similar conditions alleged those peti- conditions which it is in the tion follow or result from operation the erection and of defend- plant) to, ant’s incident upon, operation and attendant of other existing plants ice city of St. Louis. Defendant offered the testimony of contrary. witnesses to say Suffice it to that there con, was much testimony, pro and respecting conditions attendant upon, and to, operation incident existing plants, ice operation whether their constituted, or not constitute, did a nuisance. IQCO © analysis study and a careful judgment, after testimony, our
Such pre- balanced and record, evenly was printed of a rather voluminous action. parties to this opposite ponderated in of the favor of neither testimony, are owned in such existing plants, referred to Some operated owned operated by defendant, while others are operation of the foreign method parties to this action. The is, widely, some' of existing plants to have varied seems power of coal and the use plants operated by steam existing *12 by operated electrical smoke-producing fuels, and while others are utilities, public from power and current obtained from: electrical ice-making Likewise, the apart plants. from the ice separate and widely dif- existing plants in are appliances in machinery and use existing discloses) (so none of ferent, far as the record and machinery appliances plants and equipped is with the modern dis- purposes in manufacture and use, install and defendant to controversy in the instant action. ice, plant in in tribution erect, purposes it tended to 'show that evidence Defendant’s City No. a modern Block par*t in upon its land the south ice-manufacturing plant equipped with the latest brick and concrete equipment. The ice-making machinery improved and most and explained in in and detail plans plant put evidence for such were by plaintiffs. as a witness architect, who was called defendant’s machinery equipment operation and and the modern The nature defendant, plant, for purposed in and contracted to be said used representative and explained in detail an officer were likewise machinery company. appears It equipment and from of the building (and has, contemplated is to be record that erected into action, apparently put been erected and the trial of this since operation) tract of land. The the southwest corner defendant’s lines, building be, been, and has to the lot apparently is to erected edges, Street and Obear Avenue. The inner sidewalk of Penrose building Street and noi'th feet extends east feet on Penrose height building thirty-nine on Obear Avenue. The extreme of the is grades. part building, feet above street The rear or north occupying the building, more than one-half of the floor area of is 10,000 storage capacity ice. It a to be used for the has tons of building, side, ice. On front of the or Penrose Street an are engine delivery room, room, shipping a brine-tank and a room for extending ice, Penrose Street the order from east on named adjoining shipping loading room Obear Avenue. Bast of is a roadway private platform, leading a entrance or dock or with thereto delivery accommodation of Penrose Street from vehicles. private Street, approximately for vehicles on Penrose The entrance Avenue, midway between 151 feet east of Obear about Obear and loading roadway platform, The avenues. entrance Grand thereto wholly and, according plans defendant’s property to the evidence, wall, ap- from a brick are fenced off Penrose Street solid proximately twenty high, exception gateway or en- feet with the of a try private roadway. purposed It is Penrose Street into the pave private granite roadway paving with blocks laid aon cement cushion, grouted asphalt, sand and then with as a cushion and pavement. deadener, plans sound order to effect a noiseless The building evidence bears an attractive indicate that the exterior of the architectural appearance, appearance or at least as attractive an manufacturing plant may bear. machinery
In order the comprehend better understand and equipment contemplated plant, to be used in the defendant’s operation its may the manufacture distribution of ice, explain briefly process freezing well to ice to used in the controversy. freezing process, Ammonia is used in the freezing process gas. gas enters form a The subjected pressure “compressor,” in a machine called a which is gas gas. used to heat the compressor ammonia comes out of the at high relatively passes machine, temperature into another “condenser,” called a liquefied. where it is cooled The con generallv plants densers types, viz., used in ice are of two *13 open, type, or atmospheric, type. open type and the closed The of usually placed condenser is plant on the roof of the and water is s pumped to the roof parallel and allowed to run over a serie of pipes, constihiting the type condenser. The closed is of condenser kinds, two-pipe of two system. the tube-and-sliell and the The tube- type and-shell is purposed the one to be in plant. used defendant’s upon It is not plant, located the roof of the as in the use of the open, atmospheric, type or condenser, of is located inside the engine-room ground on of plant. the floor defendant’s No water flows or condenser, falls over the of the pipes outside but the are contained within a solid through steel shell the and water runs the pipes thereby cools gas, the ammonia which is confined within the solid process steel shell. Tn cooling the of the heated ammonia gas condenser, in the the water used for such becomes warm purpose by must be recooled. This is done means a cooling system, of which is to be located plant. the roof of defendant’s The cooling of the water is effected nozzles, means revolving or de vises, centrifugal force, which, by spray the horizontally water into air, the from whence it spray falls into a pond beneath, and thence again is conducted condenser, to the where process liquefying the gas the ammonia is repeated. After gas the heated ammonia is cooled liquefied condenser, in the liquid the is ammonia conducted pipes means through into and tank, the brine where it absorbs the heat thereby cools the tank, brine resulting in the freez ing of the water which is enclosed submerged tanks in the brine. The placed water is tanks receptacles, closed or approximately submerged dimensions, immersed or which are
10x20x44 inches requires about 36 to freezing process in the tank. The brine pound into blocks tanks frozen hours, the water in-the is when brine tank lifted from the or cans are of ice. The tanks then hoist, dipped a tank crane or automatic of an overhead means cans, by can, from the then the ice of warm to loosen the water upon tipping table, turned devise, slowly a mechanical are means of an incline and tfcence slip the cans onto ice allowing the machinery storage The or into the room. shipping into room electricity. may or The testi operated steam above described plants eleefrieally are the modern ice mony that show tends according question operated, to be so operated, plant testimony. defendant’s roof the Penrose show that the
Defendant's evidence tends to twenty-five controversy is feet above Street side of the system cooling nozzles, constituting street; spraying that roof; forty-two higher than described, inches stand above rotating spraying nozzles horizontally from the is thrown the water nozzles; height of the only inches above or three rises two by walls, ex- thereof on the four sides roof enclosed or of the roof and ten eleven level tending fourteen feet above the top sprays water. The north wall feet above the extreme storage house, and is a blank wall wall of of the roof is the south front, higher side, or Street than roof of the Penrose fourteen feet building. walls east, south and west of the roof of the height. so-called, are parapet Louvers, brick walls fourteen feet air, but the louvers are set parapet to admit built into these walls angle spray or within four at moisture an so as to confine the overlapping are constructed walls roof. These louvers of the seven-eighths an inch in planks, together, thickness set close outside, eight faced six to inches wide. The louvers are grill, terra cotta exterior, parapet walls with a latticed parapet solidly extended above the louvers a brick walls are louvers, approximately function of four feet. The distance *14 by engineer, explained mechanical is “to the defendant’s hold Spray spray drift or the and confine it onto the roof. that side hits here; there; side; it deflected deflected to it and hits this is to is (indicating). theory is it is The deflected to here Five times broken. separa- in of this is the mechanical scheme used all vessels the where required. breaking gas up moisture is The tion of and of the current your separates is our water. You can hold what handkerchief there you get any In words, and don’t other moisture.” defendant’s evi- prove possibility spray dence tends that no to there is of being or mist by blown wind plant the the roof of the onto the sidewalks cooling and contiguous system’ below. properties above described, exist- in in no plant, use in contemplated and ing: to be defendant’s used witnesses by defendant’s the in Louis and is believed plant St. cooling to absolute- systems and existing of improvement to over be an from the or mist prevent spray certainly ly escape the and plant. roof of defendant’s closed tube-and-shell that the to
Defendant’s evidence tends show escape the permit plant will not type to be used its of condenser that, come gas should if and even the gas fumes of ammonia escape, will be- condenser, no fumes with water in the contact the ammonia, and the affinity for water has a volume cause by use of be the presence only water can detected of ammonia in by of smell. paper solution, sense and not the litmus or Nesler’s is considerable that there to show Plaintiff’s evidence tended of by dumping of cans ice handling the and noise occasioned the that an existing evidence plants. It was shown defendant’s handling used in will dumping cans improved of the method method,” improved “group so- plant controversy. By in series or submerged in brine tank called, will thé cans eight frame, groups onto an iron eight are riveted cans. The cans “basket,” called, do come in contact or “bang” that cans not so so together emptied tipping on the when their contents They raised handled an electrical crane and table. are system gears, which are enclosed lowered an automatic oil-tight housing (somewhat ‘that of automo- in a oil like an bath of operation of thereby rendering lubricating system), bile improved gears system just use in no noiseless. The described plant existing in St. Louis. stables, garages, testimony towas the effect that no Defendant’s plant bins, coal or fuel are be maintained or used con- troversy, plans provide no such for the accessories. according premises, No horses or mules be stabled on the to de- Testimony by plaintiffs to fendant’s evidence. was introduced confusion, loud, effect is considerable noise and boisterous there vehicles, profane among talk drivers of obstruction of passageways, loading streets and incident ice sale at Louis; existing plants annoyances ice St. that such occur morning early quietude, in the slumber, hours and disturb the peace neighboi’hoods surrounding comfort residents Defendant, existing plants. hand, testimony on the other introduced by existing residing witnesses, plants, they near to the effect annoyed by loading are not disturbed or of ice vehicles According existing plants. at the evidence, to defendant’s the load- plants ing platforms existing opened at its vendors ice platform until five or six o’clock in morning, and its or dock among foremen see that order is maintained ped- teamsters *15 avoided. loading dlers of ice and vehicles is confusion .in machinery electrical testimony There was some “hum” of the that the “hum- that such existing plants, but audible outside of some of closing by may ming” entirely, if eliminated largely, noises was to effect engine-room. evidence the windows of the Defendant’s running motor, which any “hum” that of is no more .than prevent entirely eliminated, to cannot is not sufficient in- ordinary tones, carrying conversation, in and on of a moderate engine-room. side of the 21,
Upon chancellor, July detailed, on trial evidence above to judgment plaintiffs and 1924, decree and favor' entered and servants, officers, agents “be defendant, the effect that its and restrained, prohibited en- hereby and perpetually forever and build, construct, commencing from joined or to or to erect from to finishing building, or completing erection, or construction or doing directly indirectly, complete any tends, from act which or construction,. lot building, or on aforesaid finish the erection or block, house, erection, building structure, and or or the anv other any machinery placing or or thereon of or other installation therein equipment designed or be used for manu- fixtures or intended storage, therefrom, and facture, or sale ice or distribution therein any manufacturing operated from operating causing or to be ice selling distributing block, on lot and or from said from ice block, any manufacturing storage plant ice or located said lot and doing any or from other of the act acts violation letter spirit subsequently decree this decree.” was amended so “permit complete defendant roofs walls, erection thereof, beams, supports and structure columns and other in order building damage to make said and to safe avoid and deterioration building elements; to machinery thereto and now in said respects and that all said other in full decree remain force ’’ effect. Timely motions for trial judgment new were an<j arrest of filed defendant and overruled trial court. On September 5, 1924, herein, presented defendant filed to the then Chief court, herein, Justice of this inspection, his a copy of the record a,n court, together with application affidavit appeal for an to this pursuant 8, to Section Revised September Statutes 1919. On appearing 1924, it to the Chief Justice of this court that material herein, error was against committed trial court the defendant this court made granting an entered appeal order defendant an court, to this ordering defendant to file the circuit an court appeal, or supersedeas, bond in $25,000, the sum of was bond timely filed approved by defendant trial court, as ordered by this court. notice Timely of appeal, ac- upon, was served *16 Section with respondents (plaintiffs), accordance in eepted bv. us. before record is the 1919. Such Statutes
Revised ap pause this to remark opinion, we this preface to As a I: construction, validity, or applicability, not involve peal does called) city of (so of the constitutionality zoning ordinance anv of plant ice purposed defendant’s location of The Louis. St. controversy this before was in land now tbe lot of uuon v,anc. proceeding. [State rel. ex in an earlier colnP71 proceeding McKelvey. original in manda 1.] anwas 301 Mo. That v. court, brought Building of Commissioner in this to l’eauire mus. for City a nermit relators therein to issue to of St. Louis controversy. manufactory proceeding The now in erection of the ice existing constitutionality applicable upon of the then turned territory zoning which in which zoned the that citv. ordinance of district,” the residence is “second in situated nuestion the lot by the or restricted limited and were district within lands majority A and industrial. than commercial to uses other dinance membership zoning ordinance this ruled the court then city State of our violative involved to be therein of St. Louis Constitution, effect of our invalid and ineffective. and therefore proceeding ruling judgment the lot now to relieve in that was imposed controversy zoning by the to its use from restrictions as Our and invalid. unconstitutional therein ruled to be ordinance case, suura, lulling a rule of therefore became tbe McKelvev decid,?:applies, property, least so far as the .dare at and so rule zoning controversy, ordinance, bv that lot now in as affected use of tbe ruling judgment Reiving is in the Mc- concerned. our case, right had undoubted the defendant herein Kelvev municipal by the citv Louis a nermit officers of the of St. issuance of ice, plant manufacturing controversy of the now for upon erection City lot Block No. or tract of land defendant now owns presumably permit. of the citv have issued such 2485. and the officers words, iudgment ruling case, Tn under our other the McKelvev zoning ordinance, (and the. in auestion ruled to and in there be void longer effective) applicable controversy no is to the lot and im poses no restriction uuon use for its commercial or industrial nur- poses. (in case) It matters therefore this what the views of the membership (or may nresent this court what views the writer may entertain) respecting constitutionality of this oninmu existing zoning annlicabilitv similar subseauent or ordinances Louis, (have given of the expression may eifv St. or what we subject subseciuently rmr views on the in anv ease ruled Mc- case, directly, zoning indirectly, Kelvev no ordinance or even ground involved the instant case as a injunctive, purely and' beginning,
equitable, sought herein. we said relief As alleged anticipated brought enjoin potential an action is one zoning city has existing of St. Louis nuisance, no ordinance anything single question presented by with the the record be- to do contemplated appeal, namely, whether the ice fore us on this necessarily not, inevitably will, or will become a defendant nuisance. with threshold of this matter the con-
II. We are confronted at the juris- respondents (plaintiffs) court without tention of that this *17 appeal diction in that the record fails disclose that the of this pecuniary granted plaintiffs value the relief to the herein, nisi defendant, and of the loss to if the decree costs; afgrme(j; $7500, further- ^ exceeds exclusive more, granted that, appeal inasmuch herein as the was and allowed by 1919, 'court, provided this as in Section Revised Statutes by court, therefore, rather than' trial if is' without this court jurisdiction by appeal, the cause cannot this be transferred by granted proper Appeals, appeal court to the Court of of this dismissed, ruling this court must be under Division Two 282 Hence, court in Mo. 680. must Hartman, announced State v. we give jurisdictional point by respondents. attention to the raised court, determining juris
It has appellate been held in our seeking injunctive relief, diction in purely actions or wherein re money judgment lief sought, other than a in is that “the amount money volved must be determined the value in the relief to plaintiff, defendant, or of the loss to the should the relief be granted, versa, or vice should the Bank relief be denied.” [Gast Lithograph Assn., &Note v. 557; Co. 147 Fennimore Mo. Kitchell Co., 455; Gary 418; v. Railway Realty Kelly, 146 Mo. v. 284 Co. Mo. Co., Stifel, Hydro v. 570; Cambest Electric Mo. Handlan v. 616; Co., S. W. v. State ex rel. 264 W. Mid-State Serum S. 878.] cases, nothing In however, upon the cited there was record before whereby approximate pecuniary us equitable wo could of the value plaintiffs, sought by pecuniary relief defendants,' or loss to the words, granted; equitable conjecture should the relief be other our upon pecuniary'amount in dispute, so far as disclosed might cases, grounded record equally the cited been well have that pecuniary dispute juris pecuniary amount was less than our pecuniary as jurisdiction. so, diction that it was within our Not however, in the instant case.- appears
It from the record before us that plain- the four nominal “bring tiffs herein this suit not only, behalf, their own but at the request a'nd thirty-seven on behalf of other and property residents representatives owners said neighborhood, and as of a class of numer- neighborhood, too in said owners property other residents with similar herein, who are threatened plaintiffs joined as ous to be of com- same causes have the damage, and irreparable injury and plaintiffs testified nominal One of the plaintiffs herein.” plaint as of some acting and on behalf plaintiffs that nominal charged It property owners. forty-two individual forty-one or plant, structure alleged bill that defendant’s plaintiffs’ greatly “will therein, carried on of business nature and the property value of the market unreasonably destroy depreciate the plain- four nominal (i. property of the plaintiffs” e., these rep- they whom owners thirty-seven property and of other tiffs maintained). was Evidence the action resent and on whose behalf neighborhood plant in a residential by plaintiffs that an ice adduced values values; “property substantially property decrease purposes detrimentally for residence affected adversely would values of residence vicinity plant;” and that proposed considerably depreciated.” neighborhood “would be properties in the plain- nominal properties the several Photographs of residential can base upon which we record, in the tiffs are evidence and shown such structures and value of conclusion as to the cost reasonable improvements. in this court respondents (plaintiffs) filed of record Besides, the Adverting our docket. motion to advance the cause ground mo- respondents, motion, find stated therein we *18 deprived- has granting supersédeas the in this cause tion: “The of State, remedy laws of this respondents by injunction, all under the of Moreover, it finally in court. seems until cause is this this determined appellant, copy of quite appeal by that bond, obvious the furnished against respondents dam- among proteotion which no to files, is the is appel- ages suspension the and resulting to them from the of decree appeal.” settlement of this pending lant’s violation thereof the (Italics ours.) appeal by fixed this amount of the bond was Hence, we by appellant. $25,000, court and filed in that amount at in respondents admitting, by find in filed our own records motion by appellant the effect, appeal and that filed substance the bond (defendant) “pay all appellant $25,000, sum of conditioned against pro- damages may awarded it” is “no and costs which be damages resulting against them.” From all respondents to tection to drawn, logically may reasonably of be which, the conclusion sought by plaintiffs pecuniary, value of relief think, we that the the herein, them, if denied exceeds the such relief be amount by appeal herein, amount has been fixed this court bond which filed by $25,000. Again, respondents’ in the sum it is admitted motion to our has con- advance cause on docket defendant maintaining plant operating and is now the ice structed parties all controversy. appears fact be conceded tbe S'ueb also to respective of the this their filed herein. Plans action in briefs plant testimony controversy, evidence, witnesses and the equip- explaining' plant, machinery the size character of the original ment, part on our force the conclusion that the reasonable jurisdiction court, cost pecuniary thereof far exceeds of this building special peculiar and that of its structure, reason easily any design, cannot or made for other readily available manufacturing storing use Like- than that of ice and the same. machinery wise, special equipment and size of nature according plant, which, installed and used the defendant’s to the testimony witnesses, one of had been at the delivered plant actually (and site at time the trial has been put operation, apparently installed and into as use conceded parties herein), the briefs of us to the leads reasonable conclusion machinery and equipment disassembled, that such cannot be taken any money down and from than removed amount of less the pecuniary jurisdiction By experience, of this court. reason of if source, knowledge from no other we have some accurate of the present high building cost and of the manufacture and installa- tion of machinery equipment. on Where record before us appeal (as here) find pecuniary shows we it does that the value the relief plaintiffs, defendant, of the loss to should the relief be granted, versa, or vice should relief be denied, the sum exceeds jurisdiction of $7500, costs, exclusive then we must take appeal. Light so We have ruled rel. Union & State ex Electric Power Reynolds, Co. v. Ketterlin, Mo. and Tureman v. Mo. 221.
That actually $7500 more than involved con- case, we think clusively from appears the record as made in trial one court. No examining any If, that record can at other arrive conclusion. record, whole it suffices to show our jurisdiction, then it is our positive duty up- clear and pass the constitutional under mandate to appeal. Coupled the merits of the with the amount facts as to the involved, court, in the trial disclosed record admission filed respondents, motion, court, made their in this advance *19 hearing disclosing the docket, cause for on our therein construc- the respondents tion of upon the themselves what the record made in respecting trial the court discloses the amount involved. While it is repeatedly ruled, rightly parties true have that we and that so, jurisdiction upon by acquiescence, agree- cannot confer this court or ment, respondent made by nevertheless the a admissions this may court purpose viewing to for of respondent’s be looked the the respecting construction of what record us the before discloses the amount Such far involved. a situation is different from that wherein
359' court, appellant, court, an filed in this or the trial by an affidavit showing the amount judgment nisi, supply facts after seeks to the an this necessary jurisdiction appeal of and confer involved to by respond- although appellant’s affidavit be not controverted court, place their Here, advance, respondents, motion to the their ent. respecting nisi discloses upon own what the record construction discloses what the record nisi Their of amount involved. construction own construction of question with and confirms our that accords by party, a and the given to a nisi. construction record the record think, always properly party, written of a we admissions appellate court when the appellate of the court the consideration any construing rate, that record. At passing upon is itself and and now ample we find made the trial court reason, in the record ap- jurisdiction special this us, before to retain the cause granted peal upon of the ground pecuniary value relief that appellant to or to plaintiffs respondents, and loss defendant and (when money), judgment, as a far exceeds measured result Being $7500, juris- of our the’ sum of exclusive of costs. convinced appeal. proceed herein, diction we to merits seriously questioned, think, III. It cannot be doubted or we selling distributing ice manufacturing, storing, the business and is legitimate reasonably properly business, and lawful when and, and per not constitute a nuisance se. Such seems to
conducted, does judicial trend of decision and the uniform and undoubted be (Tex. App.), Co. Wood Civ. S. authority. Creek Ice v. [Goose 327; Co., App. 559, v. 105 Ill. Neither Flood Consumers W. 563.] questioned that such business is a useful can it well doubted or be general public vitally is interested necessary one, and wherein benefit, they for the reason and from which derive immeasurable well-nigh necessary commodity and ice is useful one public preserves food eat from and It we health comfort. decay palatable putrefaction, cools and renders water which it necessary functions drink, performs countless other es we public health preservation and the comfort sential to the Furthermore, large well-being of and existence. in our human life city great Louis, population, such as the of St. cities centers W'ell-nigh ice operated essential that manufactories. shall be contiguous city, closely to residen separate parts of the several wastage melting long hauls districts, tial order that may entirely avoided, if eliminated. Such avoidance tends ice decrease, keep level, price consumer of uniform price necessary commodity; otherwise, of the com and useful contemplation fixed modity accordingly have would wastage length commodity hard and the which would *20 consequent delays delivery and necessarily long from hauls result ice and dis- manufacture its sale and to the While the consumer. public commodity recognized this court as a been tribution as a has State, municipality a yet has been ruled that necessity, it expend Constitution, cannot use or of our reason of the limitations necessary enterprise, busi- but such public engage in such funds private enterprise. entirely, if largely, must left not [State ness City We therefore Orear, v. Mo. must rel. Kansas ex 503.] manufacture, distribution and sale premise start with the that enterprise, useful, legitimate and lawful business of ice is a although per se, conceding, course, does constitute a nuisance operation enterprise and manner of of such business that the method upon depending ap- may nuisance, render the circumstances it plicable operation. and incident to its cases, proof plaintiffs
As the burden of rests other establish, greater weight (respondents) herein the evi- dence, operation the method manner of de- that contemplated manufactory necessarily fendant’s an¿ ice will inevitably annoyances precise result which are alleged petition follow, the bill or herein will or result from, completion operation plant, thereby of defendant’s constitute being enjoin a nuisance. This alleged anticipated an action to an prospective distinguished or nuisance, as an action abate existing nuisance, an degree proof required and character of required differs from action existing an to abate an nuisance, and must be clear, certain, such to make from all free sub- stantial doubt, anticipated that the certainly inevitably nuisance will result. Such is the uniform rule practice of evidence and laid down subject, text-writers on the amply supported by judicial'authority. Thus, High Mr. recognized in his text on In- meritorious Ed.)
junctions (4 says: sec. 787, "Great caution is exercised in interfering with establishments promote erections tend to public convenience, . . . and in such cases will not it suffice to a probable contingent show injury, but must be shown to be inevitable and And, again, undoubted.” says same text-writer (S'ec. 743): injunction "Where an is asked to restrain the construc- tion of works such impossible nature it is for the court to know, they until completed and in operation, they whether or will not constitute a nuisance, the writ will be refused in the first instance.”
Joyce on the Law of Nuisances sec. lays (1906) thus down rule: "The fact that a business which is lawful may become a nuisance after it has been ground commenced is not a sufficient enjoining the same. It must clearly appear to the satisfaction of the court *21 in tbis connection: been said So, that it will a it has become nuisance. ‘ which mere- a work from equity lawful Before a court will restrain must satisfied ly be the court apprehended, evils threatened are in- to occur. An that anticipated the evils imminent and certain barely in- possible junction supposed or prevent will not issue to Mfg. Patterson, 148 Ind. juries.” v. [Citing Windfall Co. 414.] “Injunctions against (3 Ed.) says: 797, Wood on Nuisances sec. except in extreme cases granted will be threatened nuisances seldom as clearly such property shown to be the threatened is where use such forth injurious The bill must set leaves no doubt of its results. question of the upon a of facts as for doubt state leaves no room nuisance, point, the benefit any upon that for if is doubt there . fact . But mere given . the of it will be to the defendant. always proved use that has building is be to a that the to devoted will be a that it a is no means conclusive nuisance elsewhere charged Therefore, bill. the bill instance the nuisance the building de- is to be only to which the forth not the use should set used, building is to be so voted, in which the also the manner may whether, court see plaintiff, far known to in order injurious. light particular will be experience, human use peculiar If sets forth a method the nuisance and the answer denies unknown, practice to use, now seems effects of which are justice itself all Scotland, its commends to be, particularly courts, injunction and the ex- temporarily dissolve the allow periment actual nuisance will be tried an to determine whether question.” particular result from use in drainage case, canal Missouri In the well-known Illinois State of 248, 208, 1. speak Illinois, Mr.
v.
180 U. S.
c.
Justice
State
Shiras,
ing
Court,
“We
majority
Supreme
said:
for
Federal
it
fully agree
counsel that
is
with the contention
defendants’
only
injunction
will
an
a nuisance
issue
settled that
to restrain
is made out
determinate and
eases where the fact of nuisance
satisfactory
conflicting
if
and the in
evidence: that
evidence be
jury
ground
with
doubtful,
be
that conflict and doubt will be a
for
holding
injunction;
interposition
injunction
that,
an
where
sought
apprehended will
is
to restrain that which
create a nuisance
is
may
proofs
complainant
complain,
of which
show such
must
danger
a
will
real and
state of facts as
manifest
to be
immediate.”
general
Pope
clearly
rule
thus
Bros. & Co. v. Gas
stated
contingent
Co.,
possible,
52 W. Va.
256:
eventual or
dan
“Mere
ger
enough.
injury
beyond
will
is not
That
result must
shown
be
question.
equity
enjoin
private
‘In order
nuisance,
danger
impending
certain,
must
and imminent and the
not
be
effect
resting
hypothesis
conjecture,
or
but established
conclusive
doubtful,
Tf
injury
eventual,
evidence.
contingent,
or
if
injunction
per
nuisance,
an
complained
se
of is
matter
ap
(Pa.) 333,
4 Brews.
[Hough
Doyleston,
granted.’
v.
not be
”
proved
Cramer,
So,
said,
our own court has
Lester Real Estate Co. v. St.
authoritatively
Story
169
2
235,
Equity
Mo.
Juris
227,
quoting
prudence
Ed.)
(13
(i. e.,
see. 924a: “But
in all cases of this sort
anticipated nuisances),
equity
an.
grant
threatened or
courts of
will
injunction only
clearly
in cases
the fact
where
is
made
de
out
satisfactory
terminate and
For if
evidence.
the evidence be conflict
ing,
injury
public doubtful,
to
that alone will constitute
ground
withholding
extraordinary
And,
a
interposition.
equally
indeed,
applicable
the same doctrine is
to
of private
cases
’’
nuisance.
Furthermore, proof
depreciation
contiguous
property
value of
injunctive
alone is not sufficient to call forth
aid
(Rouse
relief
Martin,
v.
Nor existing plants, does that other and constructed and ice operated way contemplated by in a different manner than that herein, annoyances, defendant cause tend show that defendant’s annoyances. Dale, similar v. 62 Texas cause [Robinson App. 277, 279; Gavigan Refining 834; Civ. Co., Stephens v. Atl. Creamery Co., obscenity v. And, profanity; 57 Pac. while 1058.] vulgar may enjoined, nuisance, talk when shown to constitute a interchange of conversation among those whose business or voca- brings together regulate, tion police them “is for the a matter dispose injunction” (Thoenebe rather than for a v. court 6.). Mosby, 257 5, Penn. St.
In Co., plaintiff sought v. App. Flood Consumers Ill. enjoin completing building city defendant from wooden Chicago designed storage and intended for the and distribution of allegations plaintiff’s quite ice. The bill were similar to those court, denying found the bill the instant case. S'aid that injunctive prop- relief: “In order to create a nuisance from a use of erty person tangible injury the use as to work a to the must such property enjoyment pi*operty or another, or such as renders the essentially enough It diminishes uncomfortable. enough surrounding property. other It is not that it renders
value prevents letting premises his property unsalable, or that it one responsible It large a tenants. must before, for as rent as to as *23 injury tangible a to the produces appreciable be such as a or use enjoyment essentially uncomfortable or property, or renders its Eq. 20 & N. J. Prudden, E. Railroad Co. v. 530.] inconvenient. [M. upon is a nuisance . A land not . . structure owner’s erected . . will it nuisance. . capable it a use that a because is make building in noises will from the It cannot be known whether come with what loading unloading depends upon or all how and ice. It building up tight upon all care is be closed the work done. The to from'appellant’s except side, furthest removed sides on the northern depend will ice-wagons pavements property. over the The sound of and character upon pavements on the streets entirely kind of regulated an may wagons may not be This matter or of the used. altogether event, too city and, any it is council ordinance conjectural extraordinary writ of consequences require the in its to will come suggested odors It in the bill that offensive the court. standing ice-wagons, being near attached to the the horses entirely depends say Again objection appellant’s property. we care and stationed, and the ar<? their number upon where the horses restrain equity will not A given ... court of attention them. to unless upon property, building by his a an owner the erection of 364
is clear that to be on the business carried therein will be a nuisance and that it cannot be carried thereon so as not to be a nuisance. 22 Hayes, Eq. 25; v. N. J. Iliff Ill. Directors, v. School 45 [Duncan App. Ordinarily injunction granted an will act be when the 419.] thing per se, or necessarily threatened is a or nuisance will be a may nuisance, may nuisance, when it not be denied or injury according circumstances, apprehended to or when the is doubt contingent. 81; or 44 Letz, Hayes, ful View v. Ill. Duncan v. [Lake supra.] jurisdiction equity subject of courts of over the original jurisdiction. power formerly nuisances is an This was very sparingly, only exercised cases, at least until after extreme right question had first of nuisance been settled at law. While in modern has times strictness of this rule been somewhat re laxed, agreement among there is still a substantial the authorities that, party equitable resorting to entitle relief before to a court law, his ease must be clear and free from all substantial doubt as right equity To him his to relief. entitle to come into a court of 'strong the first instance there must be a mischievous case of ’ pressing 200; Wolf, Milligan, 129 Ill. v. Nelson v. necessitv. [Oswald 462; Mfg. Patterson, Ill. Windfall Co. v. Ind. 414.]” reached, upon reasons, Similar in Goose conclusions were based like Wood, 324; Purity Creek 223 S. Lindblom v. Ice Co. v. W. Ice Co., 306; Mfg. Co., 121 La. App. Ref. Ill. LeBlanc v. Orleans Ice 250; Meyer, Supp. and Knaub v. 141 N. Y. all of which eases question operation plant erection and involved the whether the of a constituted, for the would cer- and distribution of ice manufacture tainly inevitably a nuisance. constitute, weight judicial
Applying principles announced au- evidence, thority, stated, as disclosed as above to the facts right injunctive herein, say plaintiffs’ record cannot we granted by herein is clear relief the learned trial chancellor’s decree substantial, doubt, proof respecting the from all or that the free operation of con- apprehended danger defendant’s or result clearly templated manifests the ice such a state of facts as shows danger and immediate. apprehended real, certain, inevitable Having only re- a careful exhaustive reached that conclusion after subject bearing judicial authorities cited view the *24 analysis by having made a serutinous respective counsel, and after record, are con- of we contained in a rather voluminous evidence wrong it that vinced court is that the decree of the circuit conclusion, we have outright. arriving must In at such be reversed judicial cited given authorities careful consideration to several brief, which au- by respondents’ in reference to learned counsel his entirely, if with the they thorities largely, discloses that dealt or subject existing nuisances, to which character of abatement of entirely different, liberal, class of cases an and much of evi- more rule practice practice applies of dence and rule evidence and than enjoin uniformly applied which is in which an actions seek appre- potential that or nuisance. "Webelieve the authorities herein hended widely quoted applicability clear distinction and these make of practice. plaintiffs, If, perchance, rules evidence different of unlawfully any unreasonably or them, damaged, or of are hereafter or operation plant, or annoyed, the method of the of defendant’s any department operation phase thereof, or then manner of they pursue appropriate remedy any available are free recovery of way injunction, action, suit or whether for relief prejudice by (cid:127)consequential otherwise, without reason damages, opinion appeal. our this on judgment reversed, nisi
It that the decree must follows Ellison, (7(7., Lindsay concur. is so ordered. opinion is Seddon, C., PER CURIAM:—The Division One opinion judges concur, Banc. All adopted as the Court en Graves, J., except Walker, J., Ragland, J., dissent. con- C. who separate opinion. curs (concurring). GRAVES, for rehear- J., examined the motion —We opinion Seddon, C.,
ing Division, prepared thereon, an changed original change things said opinion, his and the made some opinion it. inappropos, in our did not file We examined we appeal examining In herein. such record this case and directed the question juris- record for error we were not unmindful of examined diction. then convinced that the record which we We were conclusively was involved. We $7500 much more than showed that printed and on again,.as the is now gone record same have over the present in the fully examination us to concur file. This second leads give opinion Seddon, C., some further reasons but we shall thoroughly the record are so convinced concurrence. We theory of the jurisdiction on the lower court shows our from the (the opin- spread want to our records involved, that we amount (contained record) case) patent facts ions some jurisdiction this court unerringly appellate to be show reasons, involved, well as for other the amount account of Respondents question now stress the might assigned. However, in no brief devoted to it. jurisdiction. Most is date, $7500 is up is it claimed that more than brief, filed to this otherwise, made, claim is We reiterate no brief or not involved. claim, only involved. that, fact, $7500 less than is that as a the circuit court fails show that $7500 record from than more Now for the record facts. involved. *25 plaintiff.
We first take the amount involved on the The side of petition says plaintiffs property the four named owners and are respective properties. petition says: locates their then The plaintiffs bring only behalf, “That these this suit not in their own request thirty-seven but at and on of and the behalf other residents property representatives neighborhood, owners in said and as of a of property neighborhood, class other residents and owners said joined plaintiffs too who threatened herein, numerous as are irreparable injury damage, with similar and the same and have allege complaint plaintiffs of causes as herein.” forty-one properties in Thus have least the we involved herein at neighborhood. list particular district A introduced in evidence had forty-three signers. parties shows shows that these The evidence after financ- organization, secretary-treasurer, an and had a who looked (which signers ing forty-three this lawsuit. Of the included the four twenty-two petition) named Avenue, in the thirteen were on Obear John, Street, and Gano, five on Penrose three on on Grand one reverting petition, Avenue. But to further admitted in the we facts find, damages following, as of viz: to the measure “ (a) plant, The character of structure and and the nature of neighbor- thereat, residential the business carried on therein and unreasonably destroy hood, alleged herein, greatly and and and will depreciate plaintiffs. of property the ma/rhet value of the these emanating odors, dirt,
“(b) noises, mists, dust and The aforesaid, operation plant, thereby, as will of said created and plain- great unusually quietude and of so disturb comfort households, and their to render their homes tiffs members of and degree and any peace, with reasonable of comfort and uninhabitable greatly sleep plaintiffs, and of and the will so disturb the rest homes, households, them to abandon their members of their as to force upon therefrom, thereby inflicting plaintiffs ill or become and sick injury damage.” property great irreparable their says: In the court decree the aforesaid, operation plant, in the manner as of said
“That substantially impair materially reduce and will financial plaintiffs; that the character value these property materially such as to building planned by alone is defendant the property impair value substantially and reduce financial plaintiffs.” building operating petition says that the Note the destroy depreciate value” the material “greatly . . . greatly nominally, reduce values. These properties. Not given record, and must be the force such. Note admissions of subject. value language and its also decree decree, materially according will be sub- properties, these
36? stantially planned operation (1) plant, ice reduced, (ice building plant building), (2) by character of the the mere *26 considering operation. decree takes a double shot without its The at properties. emphasize values of these We these record reduced admissions, applicability their to other facts as to values because proof by admission, other than apparent record, by in the likewise supra. give we value facts, as are First some facts to the land vicinity suit, in this and then in the land involved law some photographs properties involved. Plaintiff Aufder- of some of the testimony speaking vicinity a heide, in lot the exact his forty-three (the parties), and which property plaintiffs around says property built, that the owner offered to take much of their buy per $125 foot. The offer to per $150 for and was offered it, foot strong value. for per very property evidence of The $125 at foot is part part south per foot was $125 was offered defendant, property by at the corner Penrose Street now owned surroundings can best be described Obear Avenue. plat City 2485. Block evidence City it. corner of Block Ice Plant in southwest 2485. just property south of it.
Aufderheide City part, Of 2485 this Block the defendant now has all the south being Street, 314 inches feet and five and one-half on Penrose Grand Avenue. feet and on Obear Avenue and one-inch something has over 154 on the south side of Pen-
Aufderheide feet just plant Street, rose across the street from ice defendant. forty-three parties in- plaintiffs, named and ten more of the Three lawsuit, property Avenue, and bound own on Obear terested just City Block street, across the on the west 2485. twenty-two Avenue, John of these
Just west of Obear Avenue is parties property own and are domiciled on street. west Further property Gano, and next to John is and three own there. With Grand one on Penrose, four others Aufderheide, there are of defendant. his lots with those compares Avenue. Aufderheide “filling in” but there was more “filled says properties both were He his lots better rather makes out property. He in” on defendant’s per offered $125 owner were and the then for which he than those front foot. Street, and Penrose Avenue of Grand southeast corner
At the (three row of flats January, 1923, a Anthony Potolsky bought, says paid $15,500. all) He single flat, or four and one double per for upon them, $200 and now rents them put $5000 he Pen- Avenue feet on 109 feet on Grand month. The lot is bought known that the ice had he says have he would not He rose. (at trial), know says after he built, also did was to be plant would not that he take being constructed, $20,000 was plaintiffs’ photograph below, Exhibit brick flats. The row of old *27 of the charactet shows the flats. Anthony Potolsky paid Brick flats of for which he $142 per building. front foot for lot flats, fact, frontage These of 109 constitute one structure with a Potolsky feet on paid per $142 Grand Avenue. front for lot foot building. importance. It is that is of have fact Above we given adjudications the record admissions the court as to depreciation property plaintiffs. The of the evidence takes range.. little broader witness who and owns a residence One lives (it city plants across the street from one of defendants’ ice has in the manufacturing plants storage and in addition plants), eleven eleven Q. says: “Judge ARNOLD; get anything you? Can’t for A. it can Well, hardly.” ranges The evidence “hardly any- therefore thing” on down. As on value to effect other -say, witnesses “Sub- reduction;” stantial property makes “hard to rent” and affects “adversely detrimentally affected; value; property rental purposes;” location of ice depreciate value rental detrimental; and, depreciate very “would value plant “would be samples Such more difficult.” are property sale of make evidence. adjudications pleadings, in the foregoing
The admissions clearly property tend to show decree, and evidence of witnesses twenty-five if not per cent, than be reduced less values would say per twenty-five It is twenty-five than cent. safe much more per or one-fourth. cent, forty- improvements property character of the by pictures plaintiffs in- parties is interested shown
three gleaned. value can be These From them some idea of troduced. following page. pictures below and on
Property plaintiff Aufderheide, garage with between buildings. *28 just City
Houses Block across Obear Avenue and west of plaintiffs No. Thirteen live here. 2485. at Obear and Penrose.
Residences pictures The Gano unmarked in Ex. of houses on 20 are Ave.
This will suffice for a discussion of the amount involved from plaintiff’s case, side of the as such is involved under the rule. amount on both sides of the ease is for consideration, as we see law, and this rule we discuss next.
I. legal One graced clearest appellate minds that ever an *29 bench in Missouri juris- formulated determining the Missouri of rule diction in cases wherein money judgment relief other than a is in- volved. (Evens
That rule & Howard Fire Brick Co. v. Smeltering St. L. & 48 Ref. Co., App. Mo. 1. c. 635), reads:
371 depends that, right appeal “It is settled the of the value where money. dispute, of in be in the matter such value must estimated money a object however, judg- the is not to obtain suit, When the relief, but other amount must be ment, involved determined plaintiff, money the loss the value in to or to the relief granted, versa, defendant, be vice should the re- should the relief or necessarily vn the sum within the lief excess be denied. either If appellate juñsdÁction SVrpreme court, then the has ex- Court cognizance We this view in the case of appeal. clusive took transferring 513, case App. v. 42 that Gartside, Gartside Mo. to court, refusing Supreme Court, and that to remand cause holding.” our effect, affirmed upon us motion made that particular, -writer was It will that the learned be observed say words, if involved- either side ex few the amount jurisdiction jurisdiction Appeals, Court of was ceeded the If Supreme plain a reason for this rule. Court. There was might judgment gained $7500, exceed whereas tiff had his relief If $7500. much under loss (appellant) might loss to defendant might plaintiff lose (appellant) controlled, alone defendant $7500) ap in an judgment (for relief in value much-more than his involved in jurisdiction over the amount pellate which had no court (plaintiff’s says: gain “If either plaintiff’s judgment. Hence the rule necessarily in of the sum versa), excess or loss or vice defendant’s Appeals) (Court appellate jurisdiction within the of this court cognizance appeal.” exclusive Supreme then the Court has thorough re had made a jurist formulated the rule learned who v. of Gartside Gart courts case view of the eases in the Federal gathered the fundamentals side, App. 513, 42 from them Mo. and fol cases have endorsed All our rule. of our well-considered Lithograph v. Fennimore Bank & Co. lowed this rule. Note [Gast 256 Reynolds, & P. v. 559; E. L. Co. Assn., 147 1. c. State ex rel. Mo. 34; 719; 222 1. 33 and McCoy Randall, Mo. c. Mo. 1. c. 718 and v. 143; v. Agency Garlich Co. Clothing 1. c. Watson, v. Mo. Co. Troll, 262 1. c. 381 and v. Anderson, 204; c. Bowles Mo. 1. Mo. App. 1. in Mo. c. approve All the rule these cases 382.] quoted supra. lower court must record
II. We have further ruled jurisdictional amount. Subse- bespeak show facts sufficient to the. con- showing involved will quently amount filed affidavits n nisi, involved amount In from the court sidered. such record cents, either in dollars and figures, appear does not have to record pleadings evidence, appear facts must $7500 than of more estimated amount such court which do show an *30 372 sought. money judgment is other than [State cases where relief
ex v. 256 Reynolds, rel. Mo. 1. c. 718.] ex record from the court nisi. [State must consider the
We whole 279; 281 Tureman supra; Vordick, Mo. Reynolds, rel. Vordick v. v. Vanderberg 199 In 221; Co., Mo. v. Gas Mo. Ketterlin, v. 455.] page Lamm, J., thoroughly all cases. See latter case reviews bound 460 of 199 it is said that we are even where Mo. involved, the record when petition as to amount the other facts contrary. wherein other than suffices, It in these cases relief show the to show from which money judgment sought, record facts in may fact, that is, $7500 seen and estimated more be than may petition, from admissions volved. These facts come and the They supra. may ex Reynolds, as in rel. come from therein State v. Yordick, in Yordick entire record as v. the consideration of the .supra. emphasize Ketterlin, is, v. What we it is not Tureman required to show from the record that some witness has stated the plaintiff: granted many value of be so the relief dollars and if cents. It the record shows suffices facts which this court $7500 should conclude that more than involved. What have we plaintiff applies said of the to the loss suffered defendant. stated,
III. With the facts let us see as to the amount and value granted plaintiffs. of the relief plaintiffs We the four take named petition first, .the and the others later. We also take value of their mere naked lots first. has at Aufderheide least front feet n more) (we quite think a bit per gives $125 at front $19,150 foot as the value of his him twenty-five lots. The decree saves at least per supra. cent of as stated, this value we have The evidence and damages the record shows that the property (by to his the erection operating plant) of the ice would at least be one-fourth its depreciation value. admission, The record toas property, of their in this petition, twenty-five would make it more than per cent, and they these admissions bound here. These admissions are set supra. out, The relief to him would $4787.50. Three others of the plaintiffs named live on Obear pictures Avenue. The in evidence (by show thereon) the character of the houses lots these can’t than twenty-five frontage less They feet each. fifty are no doubt feet, as were the just lots Block 2485 opposite. gives This seventy- frontage five feet of Avenue, Obear which at $125 per ag foot gregate $9375 as the value of these lots without the houses. The granted relief would be sum, one-fourth of or $2343.75. Now $2343.75 add this $4787.50 to Aufderheide’s $7131.25 have we money granted as the value of the relief plaintiffs to the four named on their naked alone. lots That the three houses on Aufderheide’s property and the three on (owned Obear Avenue the other three plaintiffs) very named are worth much more than fact $2000 each is a apparent pictures placed to the humblest citizen in the from the by plaintiffs $10,000 record have at themselves. Here we least (nearer my $40,000 judgment) houses, the value of the and one- *31 granted. fourth of $2500, that Add this $2500 would be the relief alone) (value granted to $7131.25 the of to the lots and we relief (estimated money) granted $9631.25 have for the relief the de by plaintiffs juris cree to these for four alone. This suffices our named suppose purchase price Potolsky diction. But take of flats we the aas estimate, money, properties basis for an of of these same plaintiffs. improved four Potolsky paid For his front per $142 lot picture clearly foot. improvements plain indicates that the properties tiff's good. (belonging are at least as We would have to plaintiffs) the four named property per 229 feet of at improved $142 gives foot which $32,518. granted by a total value of Relief decree $8129.25, jurisdiction. one-fourth of this is which shows our These money granted values of relief are from facts in the But record. not receiving this is all. We have relief, 39 others the same and re ceiving plaintiffs it suit four, at the made petition. and of They paid prosecuted and this suit. When these are considered for (as they be), money must and the given value them of relief n thedecree is added, many toe have $7500. times
If plaintiffs any jurisdiction thwarting had idea of of this court (which they being pure they did a not—this idea afterthought), playing they were with pictures fire when proper introduced of their ty. give average Pictures to the man an value, idea of and courts things must everybody Telephone know knows. v.Co. [Home Telephone Co., Sarcoxie Mo. 1. c. We don’t mean that 127.] everybody expert is an house, on the a everybody value of knows a given (described that described house picture) and a has some substantial and a fair value idea of such value. say We mean to average safely such say citizen can that such house cannot be worth money. less than so much picture With (some evidence evi value) dence of the courts must know as much average general as the public knows. The evidence shows that one of the houses on Obear Avenue is a cottage, picture five-room and the shows it to be of one Avenue, belongs smaller houses on Obear and to one of the plaintiffs. named angle any granted
S'o from plaintiffs the relief juris- exceeds the dictional amount $7500. of go
IV. We now to record facts as to amount involved on defend- ant’s case, side of the under the decree rendered herein. Of the size building petition (admissions herein) of record says: ground southwest on the a acquired has lot of “Thai defendant sixty than feet distant more No. City Block
corner of said proceeding now plaintiffs, of these from said residences by it building to used large be brich thereon, a erect construct selling therein storing ice manufacturing, purpose high, sixty building will therefrom; walls said feet twenty-seven twenty-two two mid hundred one hundred feet lines the sidewalk within a length, abut or few feet avenues.” and Penrose Obear system cooling cooling and of system, plants must have a Ice petition plaintiffs says: ‘‘ planned and has making which defendant process ice, That cooling contemplates construction of plant, said intends use at thirty-five building, system top of said at or near consisting large number of- coils fifty street, above the feet length number diameter, pipe three inches iron two or *32 a flow of plaintiffs, which constant of which unknown over through will -the day night, and fall maintained, water ivill be a open air, twenty receptacle or feet beneath. some ten necessary, will heavy machinery “That intended to and is be machinery manufacturing operation plant, ice said said day throughout night, and will, will reason be constant disturbing during thereof, noises the usual make continuous hours of rest.” machinery building and Of this to be used therein the decree l n
says: i adopted by “That plans said defendant the construction of manufactory provided of, said ice for the erection and said defend- engaged large will erect, erecting, ant to and and is now a intends building brich, steel, abutting tile and the sidewalk Pen- lines of intersection; avenues, rose Obear at or near their build- said asp- ing thirty-nine height, completed when will be will extend feet proximately along and ten two Obear Avenue and one MmdP.ed feet Piventy-one along Street; hundred and Penrose that when com- feet pleted building storage said will capacity have for ten thousand plan tons of it is ice, and and intention said defendant to and said building defendant install said electrically driven ma- large chinery, heavy type, and a number ice sufficient seventy or per tanks cans to day.” ice tons manufacture petition general The is a general admission of record as to the character of building machinery. plans changed The were in the construction, course of description and the is a decree better building of machinery, but will necessary go to the evidence, because it tends to show an many, investment of many dollars, thousands of wiped much of would out the en- herein, now of the decree rendered before ns forcemeat building sides, briefs, completed Both treat the appeal. given injunction bond was at operation. No the time the suit filed, or
was since. ground A building plan fronts south on Penrose Street. The 17., Exhibit plat given. it is defendant’s which is shown here Ground Plan of the Plant in this Ice involved action. (cid:127) alley lots, alley is all defendant’s and east of the property. defendant’s gather “As we frontage building the facts the of the on Penrose engine room, shipping Street is room, feet. Note therein the tank platform. building room and portion thirty-nine This feet *33 high, cooling but fourteen feet of this is the roof and is the above plant. (as record) space gather This 121 above the roof is we (fronting Street) by ninety feet, feet on Penrose and is surrounded by four walls feet fourteen above the roof. The south and north walls long ninety would be 121 long, by feet and the east and walls west feet height. louvers, fourteen In feet three of these walls are built the openings or air, thoroughly for the free admission of the to aeriate cooling system. give water of the facts, We these because all the expense building (of the fourteen foot walls above the roof brick cotta) loss, and terra except salvage would be an absolute for the brick, second-hand the event the decree stands. No other aggregating business could use walls 422 length by these feet height. machinery fourteen feet in So also all for the water sprays cooling system of would be a dead loss. "The'loss at this point jurisdictional one would more than cover the amount. We have wages some idea of the cost of brick and the of brick-layers. The salvage in pay second-hand brick would hardly for removing
376 original leaving enforced, thus walls, if the
superfluous decree length, building 422 wall wages feet of for and the cost of brick freezing only so, Not but the height, a dead loss. feet in fourteen cans ninety feet, metal thirty-nine by is used in which tank is high forty-four inches These cans are freezing into ice. the water 300- enough make a 11x22 as hold water inches, so with a base of cans make requires 1000 of these metal pound block of ice. It seventy vat output hot-water daily tons of ice. Then there taking it up the through pass to loosen ice before which these cans storage loading abe total These vats would room. out expensive very would be under evi- (and construction loss their belong figures given), they because ice although dence, no them) plants only. junk mere freezing (1000 cans become plant engines when used become closed. The would second- (the plant Victor junk. plant hand At of defendant constructed just plant) following they instant Penrose Street use the before the engines: 125-horse-power, 150-horse-power, two One two 40-horse- 25-horse-power, 3-horse-power couple several and a power, two by engines and Everything is moved cranes. The 2-horse-power. to be the most modern plant complete here is shown involved plant anywhere its Evidently to the date of up construction. complete parts machinery has as numerous as at the Victor point plant, predecessor, its immediate This construction. jurisdictional machinery could not be dismanteled within amount appellate jurisdiction. Defendant’s 16 gives our a fair Exhibit involved. Plaintiff’s outline of the here Exhibits and 7 plant, plaintiff’s show three the Victor Exhibit sides shows 'plants. these, "We insert so another of defendant’s that some con- plants ception cost of ice and the may consequent be had of the damage in this flowing decree case. from the *34 plant. Victor
One view of the defendant’s plant. A third Victor view the Kingshighway Another n or and Natural Ice Plants Bridge Road. *35 defendant, located at pictures showing These elevations prints. dispute, taken from blue many, ignorant mcmy, very yes, We are not know that so plant, thousands of dollars are invested the Penrose Street (only must be dismaifteled the decree. From the record facts under a part detailed), of which we we know that this decree have must damages upon our defendant, inflict and loss several times jurisdictional However, amount of under the if the law, $7500. juris- amount has $7500, involved either side is above this court diction. record facts We think we demonstrated from have juris- from either exceeds our case, side of the the amount involved diction. my re-reading A mind a
Y. in this case discloses record *36 plaintiffs says: question. petition constitutional The erect, and will further that intends to “Plaintiffs state defendant enjoined alleged operate as unless plant herein, maintain said Court; by that if said erected therefrom this Honorable by plaintiffs will operated aforesaid, then, premises, as reason of the deprived process law, of in violation property be of their without due 1 of of Amendment of the Constitution of the Section the Fourteenth II of States, United and Section of Article of the Constitution ’’ Missouri. The answer reads:
“Comes now defendant in above-entitled for answer the case and petition allegation plaintiffs the amended denies each every therein contained.
“Wherefore, having fully answered, pi’ays dis- this defendant to be with missed its costs.”
Among things says: other the decree having duly
“And the cause been for the decision and submitted court, being duly final fully court decree the the ad- joined in premises, vised doth find herein the iss-ues favor of plaintiffs against defendant, & Fuel Polar Ice Wave Company, plaintiffs ‘prayed and that are entitled to the relief petition.” their (the joined question
The issues constitutional was one of the issues joined) plaintiffs against were all found in favor of the de- fendant. upholds
In other words plaintiffs the decree the contentions of as to question by finding the constitutional all in favor plaintiffs, issues against and the defendant, (gen- decree finds when its answer denial) eral encroaching the defendant it was not upon, said or violat- ing, rights by charged the constitutional plaintiffs, as them petition. their we question So this case have the constitutional only brought (the not pleadings raised and to an in the issue earliest possible time), passing but upon we have the court it in its decree. only so, passing upon against Not but it the contention of the de- fendant, appellant question In here. such case this alone suffices jurisdiction appeal for the of this over the herein. eourt In early Ry. Co., rather case of Bennett v. Mo. 1. c. Mac- FARLANE,J., said: ‘‘ Louis St. or the this court presented is whether question here Tbe subject-matter jurisdiction of the appellate Appeals has Court of determined, be jurisdiction is to quite It clear that
this case. from the court, appellate been from what has done jurisdiction is then The appeal was taken. it as was when record change it. afterwards nothing parties can do fixed, ‘‘ ap- case, when this the record is, did proposition then involving the construction question peal present a allowed, was must be State. This States, or of this of the United the Constitution itself from the as came inspection of record an determined Court. St. Louis Circuit fixing Constitution, ‘involving,’ used “The word implies a constitutional court, jurisdiction appellate' court, trial in and question -was raised submitted It be laid opportunity pass it. cannot had the such court every question must raised in the trial down rule how such presented by directly fairly and least, at court, should, but it procedure of the practice and recognized some the methods Appeals, 97 Campbell v. Louis rel. St. Court court. ex [State *37 App. 278; Seifert, Mo. Railroad Mo. v. 37.]” only italics, case, In the the court not supra, The are ours. instant pass opportunity upon question, constitutional had the against appellant. its of pass decree did it the contention ‘ discussing ordinary admit what we are now is not the ~We that lodgment question. Ordinarily usual it is of a constitutional having party question against him his own constitutional ruled brings appeals, question. petition thus into ease The here, however, charges that the erection maintenance this ice of plant taking plaintiffs’ process property is the of without due of law portions of namecl violation of both State and Federal Constitu- plaintiffs inject tions. The issue, this involves the constitu- question. portion tional The this defendant denies as well all other petition. parts of the court, decree, finds The its all for the issues plaintiffs, saying by decree, thus its that the .erection and maintenance of taking this ice property plaintiffs constitutes the of the of process law, saying without due and thus you to defendant were wrong, by your answer, you when your denied that conduct violated rights you constitutional of plaintiffs, but did con- violate their rights. stitutional From this decree of the court defendant has appealed. finding This of the court on this question, constitutional defendant asks this court to reverse. Is there live constitutional question here? We think We portion so. can’t reverse this of questions thus passing upon the constitutional nisi, without decree decree. injected case, and thus determined into the trial, grounds its motion for new defendant, four The some Federal the State and portions raises, by specific mention taking prop- its as the questions, such constitutional Constitution, equal protection of the law, process denial of the erty without due question squarely law, etc., think a constitutional but we parts motion new without'considering defendant’s case, those lodge questions case. trial which not being involved we shall question as title to real estate question issue. is the sole
discuss, that to a case where such but leave clearly jurisdiction, with- enough in to show our this record We have out more. our learned merits, in addition to what
YI. a word Just photographs must Again faithful has written. Commissioner considered, When all are a number of them. considered. There are merely upon plaintiffs is clearly appears property of these that the territory from commercial separating residential the border line was, defendant, property property, business improvement started, within a district when and when the bought, business, commercial and manu- (as fact) overwhelmingly devoted Many houses, on Obear Avenue facturing purposes. even property, and it was known bought its after defendant were erected only have bought plant. So we property was for an ice that the make their case. plaintiffs, facts, failed to jurisdiction, but the on the White, opinion At- I of our Commissioner. therefore concur opinion Gantt, JJ., views as well as concur these wood C. SeddoN, Rehearing. ON Motion eor *38 di- respondents,
GRAVES, rehearing, motion for J. The separate concurring opinion, very largely therefore to the rected hearing in argument the No was made these observations. serious at time) (nor any Court other on the merits the decree en Banc at (en promised argument Bane), upou nisi, and none can be made. solely excerpt from merits, reading an the to the court consisted nisi, prepared bodily excerpt from was the and this the decree decree ease, evidence, in and not from far as petition the so Thrice have read involved in this cause is concerned. we ice photograph- therein, case, every record in this and viewed the entire support wisi in the decree is without the record we reiterate that up-to-date plant in this as to the involved case. evidence new fully matter, go opinion But the cares for this and we C., Seddon, -things urged rehearing. present for We shall to the in the motion brief, pointed. but
382 Respondents overruling (as about our exceedingly solicitous
1.
are
con
meritless
they
question of
think)
written on
heretofore
cases
urged
They
jurisdiction.
of our
in behalf
questions as
stitutional
Evans, 238
Canning
Mo.
v.Co.
cases,
follows: Brookline
cite six
Pigment
Co.,
61;
Co.,
56,
Segall v.
Railway
1. c.
Mo.
Bolts v.
599:
495,
505;
1.
McManus v.
719;
Co.,
c.
v. Ins.
281 Mo.
263 Mo.
Bealmer
512;
S.
714 and 715.
Tatam,
2. only Next it is that we the relief can consider plaintiffs true one of the Even if this were divers involved herein. jurisdiction concurring separate would In this court. opinion very only we minimum estimates of the made lowest granted money relief value of such relief. To we took illustrate Avenue, twenty-five frontage, lots on Obear minimum at the feet lots, just they all when facts indicated them to be fiftv-foot city block whereon the ice has been erected. If the is, (en by (which law respondents as latelv do contended Band we concede), by yet admissions, his record has Aufderheide. own damage, consequently relief, shown that his his was far excess says petition building $7500. In the he that the and maintenance plant, unreasonably greatly destroy this ice “will . . . property the market' plaintiffs,” value of the of these and he was one (in petition) of them. Further on Aufderheide admits that plaintiffs conditions, would, by he and the other reason of the named homes, be forced to “abandon their ill or become sick therefrom.” Homes that have be abandoned are worthless. We are entitled to admissions, use these written and we therefore have Aufderheide’s property practically of over two hundred feet when destroyed, he per $150 himself had property just asked front foot for across the street, actually per $125 and had been offered front for it. foot This property property. was mere vacant proved. highly Aufderheide’s im- say This court could well that Aufderheide alone received relief, according very by decree, his record, admissions of jurisdictional much than more By amount. one it is witness shown (in that vacant lots across from the saw-mill the same block plant) as the ice per were $20 reduced to foot reason of the hum of property the saw-mill. This vacant for which Aufderheide per $150, $125 was foot, offered front and asked was in the same vicinity. guided immediate if So relief, we have to be esti- only mated in plaintiff money, (which one concede), we do not admissions, Aufderheide has shown his record evidence, that he alone has received much than $7500 more relief the de- cree. contending
3. In granted by sum that the total of the relief plaintiffs decree to all jurisdictional cannot be considered as amount, 3 Corpus we are cited to page Juris, paragraph 209,
384 Respondents over- 224. Armstrong, 168 S. Ogden City U. v. volume, same 415, the 215, page of paragraph Juris, 3 Corpus
look whereat is said: the enforcement judgment for plaintiffs seek one
“Where several same being upon the founded demands, demands of their several such ap- of the criterion is held to furnish liability, aggregate amount the may not- appeal, pellate behalf, jurisdiction in and defendant their judgment in would plaintiff the each withstanding the interest of the jurisdiction. And where amount to confer not be of sufficient of in favor several sums against appellant consists of decreed amount juris- which would come within one sums appellees, various no aggregate is in excess amount, of which amount dictional but may appeal.” limit, it is that defendant jurisdictional held para fact that their citation Respondents the further overlook an Corpus Juris, 3 a statement 411, rule graph 209, page by by courts, not Missouri very largely the Federal nounced Pro courts, there is a Code of courts of other states wherein equity in Re than rules of court cases. cedure, rather the Federal spondents permitted have could have added that Federal courts (filed jurisdictional judg to be shown affidavits after amount granted money court), to the value of the relief ment lower as they always equity proceeding not below. In other words do nisi, jurisdiction, per take the facts of record as conclusive thing supplemental affidavits, a. con mit courts of this State' Reynolds, demn. ex rel. v. 256 Mo. and the cases reviewed [State Our Practice Act is left clear out of consideration re therein.] spondents, appealed judgment its on the also effects provides present Practice case. Our Act for the consolidation juris cases, judgment if consolidation, after for suffices diction, Fraser, court has it will take this it. ex rel. v. [State opinion by Burgess, J., 1. 165 Mo. c. concurred in G-ANtt 256 — suits, Sherwood, (after Neither Fraser case JJ.] Act), was ward consolidated under the Practice sufficient for amount jurisdiction jurisdiction in place court, this but we retained in the separate Respondents of action. case. The cases were causes over fact, code, practice generally, look the further that under our and the may themselves, plaintiffs, similarly sue for one or more and others petition done in this case. Such was situated. was demur- any ground, in judgment, judgment and but rable on our one could entered, plaintiffs. forty-three which all covered Further had the parties brought separate enjoin interest this case suits building operation plant, they of this ice under our Practice Act consolidated, single judgment could one have been entered prajed. Under the relief the case of ex v. Fraser, State rel. supra, aggregate sum the consolidated actions would determine the rules between forget that there is a jurisdiction. Don’t difference equitable Federal practice rules acts, and mere court State under cases. v. Priest cases of are the evidencing
Further Missouri rule Savings Bank v. Butchers Washington Deaver, 209, and, App. Mo. and the .cases, App. 449,
& 61 Mo. both of Bank, Drover’s Bradley v. rulings court therein, approval with are cited case, supra, plaintiff Co., Ins. Mo. 1. c. 638. In Priest *41 amount, but jurisdictional judgment than the entered for more had $1204.85, their several than no was for more defendant liable adjudicated separate against ranged $267.75 judgments them from adjudged juris pay to $1204.85. No had been defendant they permitted up all of them. $2500, yet dictional to add sum were in Appeals appeal The Court' of the defendants was ruled- that the spoke approvingly of such Supreme Court, and as said this court Bradley disposition Appeals case, in Court of case rule, App., supra. supra. case Mo. Our To like effect in with fully concurring accords our opinion, we set out in the Act, Under it interests rulings Practice and the thereunder. parties considered, and plaintiffs
of all these must as had judgment rig-ht sue, they did, and as under the code one judg favor, granted by could be in the full relief such rendered their determining money, ment amount must be estimated dispute, purpose fixing jurisdiction. for the
4. all involved defendant’s But aside from this the amount rule, Had as announced side the case is sufficient. we the Federal receiving judgment cases, some of their affidavits after the nisi dispute money equity cases, show the amount these where no judgment damage defendant sought, the to this virtue of decree, up petition,-rather written than from the evidence touching particular plant particular case, in this involved would appalling. bond, Plaintiff nisi, sued without and after decree it was completion protect modified so as allow of those walls to machinery, evidently cooling system install&d therein. The machinery its had to be built walls were built. But this is .as the n all, supersedeas granted, giving there was thus to defendant legal right the full to complete, full, operate plant, even to it, spoke until contrary. yet this court spoken. to the As it' has not so jurisdiction beyond This court question has doubt, aof and the amply Commissioner is sustained on merits case.' rehearing Blair, motion for should be overruled. and Gantt, Atwood White, JJ., concur; J., except in all concurs what is said about the dissent, question; constitutional Walker, J., Ragland, J., O. arid