Bradley v. Milwaukee Mechanics Insurance
49 S.W. 867
Mo.
1899
Check Treatment
MARSHALL, J.

— Action on a policy of insurance.

The plaintiff recovered judgment against defendant in the circuit court for $2,000, the face of a policy of insurance issued by defendant upon a brick building in Higbee, and for $40 interest. The defendant appealed to the Kansas City Court of Appeals, and that court reversed the judgment of the circuit court on the ground that plaintiff was not the sole owner of the property insured аt the time the policy was issued, but held it as trustee for himself and other persons, and that the policy provided that it should be void if рlaintiff was not the sole owner.

*636That court, however, certified the case to this court ou the ground that the title to real еstate is involved in the ‍​​​‌‌‌​‌​​​​‌‌‌‌‌​​​‌‌​​‌​​​​‌‌​​‌‌‌‌​‌​‌‌‌‌​​​​‍case, within the meaning of section 12 of article YI of the Constitution, and hence, this court has jurisdiction.

It needs no lengthy demonstration to show that the title to real estate is not involved in this suit. The action is upon a policy of insurancе on a house it is true, but the only judgment that could be rendered in the case, can, and must be, satisfied by the payment of money — costs if the plaintiff loses, damages and costs if the defendant loses. In any event the title to the real estate will remain wherever it was before the litigation commenced. By no decree in the power of the court to enter in this case, can the plaintiff’s paper title to the property, on which the burnt house formerly stood, be disturbed, and the defendant concededly has no claim to the real estate. Amplification of so plain a proposition is a waste of time and words. In faсt, the plaintiff does not now contend that this court has jurisdiction for this reason, and such contention could not reasonably bе expected to avail anything, since the proposition is now settled in our State. [Hilton v. St. Louis, 129 Mo. 389; Fischer v. Johnson, 139 Mo. 433; Heman v. Wade, 141 Mo. 598; State ex rel. v. School District, 143 Mo. 89; Price v. Blankenship, 144 Mo. 203.]

Plaintiff does contend, howevеr, that the issues involved in this case are identical with those involved in the ease of plaintiff against German American Insurancе Company; that while the two cases were not consolidated by the trial court, and separate judgments were renderеd ‍​​​‌‌‌​‌​​​​‌‌‌‌‌​​​‌‌​​‌​​​​‌‌​​‌‌‌‌​‌​‌‌‌‌​​​​‍and separate appeals have been taken in the two cases, still they were tried together below, the witnesses were sworn but once, and hence they were in effect consolidated, and that if so treated there is more than $2,500 involved, and hence this court has jurisdiction.

*637The records in the two cases do not show that such was the case. The cases were brought up on “short records” under section 2253, and hence show only the judgments appealed from. The abstract of the reсord does not show that such was the procedure in the circuit court. The abstract of the record is prefaced by а stipulation of counsel stating that the cases were tried together, that separate bills of exception were filed and that the record and bill of exceptions in each case are identical, and it was agreed by counsel that both causes may be considered in this court on the record, statement and brief in this case. But this does not make them one suit, nor dоes it bring the case within the provisions of section 12 of article YI of the Oonstitution. It is plain that a joint judgment could not be rendered against both defendants in either case, and that a satisfaction of either of the separate judgments would not be a satisfaction of the other. There is no privity of liability between the defendants any more than there would be between two defendants who were sued separately upon two separate promissory notes, and the defense in each case was usury or payment or failure of consideration, for the same evidence might be as applicable to two such сases as to the two policies here sued on. The cases cited and relied on by plaintiffs in their contention in this regard dо not support their position.

In Ellis v. Harrison, 104 Mo. 280, the petition contained four counts. There was judgment for the defendant on three counts, where the combined amounts would bring the casenvithin the appellate jurisdiction of this court, and judgment for plaintiff on the fourth count, for an amount below the appellate jurisdiction ‍​​​‌‌‌​‌​​​​‌‌‌‌‌​​​‌‌​​‌​​​​‌‌​​‌‌‌‌​‌​‌‌‌‌​​​​‍of this court. The plaintiff appealed from the judgment against him on thе first three counts, and the defendant appealed from the judgment against him on the fourth count. This court held that there was no mеrit in the plaintiff’s appeal, and then the question *638arose whether this court had jurisdiction as to defendant’s appeal, thе amount involved in it being below the appellate jurisdiction of this court. The court held that as it had appellate jurisdictiоn as to plaintiffs’ appeal, it also had jurisdiction as to defendants’ appeal inasmuch as it was a part of the same judgment. But manifestly that case is no authority for the proposition contended for in this case. In Priest v. Deaver, 21 Mo. App. 209, there werе several defendants, the total recovery brought the case within the appellate jurisdiction of this court, but it was apportioned between the defendants in differing amounts. The appealing defendant’s ‍​​​‌‌‌​‌​​​​‌‌‌‌‌​​​‌‌​​‌​​​​‌‌​​‌‌‌‌​‌​‌‌‌‌​​​​‍judgment did not exceed $2,500, and the court of аppeals held that the total recovery controlled the jurisdiction and certified the case to this court. There is nо parallel between that case and this.

In the case of Washington Savings Bank v. Butchers and Drovers Bank, 61 Mo. App. 448, the liability of the apрealing defendants exceeded $2,500, although it was apportioned between the defendants in smaller amounts, and Priest v. Deаver, supra, was followed. In both of those cases there was but one ‍​​​‌‌‌​‌​​​​‌‌‌‌‌​​​‌‌​​‌​​​​‌‌​​‌‌‌‌​‌​‌‌‌‌​​​​‍case, although there were several defendants, while in the case at bar there are two distinct suits with only one defendant in each, and neither case involves over $2,500. Hence the difference between the cases.

Whether the circuit court would have had power under section 2189, R. S. 1889, to consolidate these two suits, it is not necessary now to decide. It is sufficient to say the court did not in fact consolidate them, and neither party to either suit asked the court to do so. They are therefore two separate suits, and as neither one involves more than $2,500 this court has no jurisdiction. The.case is therefore transferred to the Kansas City Court of Appeals.

All concur.