*1 S. W. George Devoto. 31 A. Appellant, J. Nioholas Devoto, 805. One, 1930. October Division *2 Taylor Young R. appellant. for
Abbott, Fauntleroy, & respondent. Cullen Edwards for FERGUSON, C. This is for of real accounting. for ah Plaintiff and defendant are brothers. ma- The allegations terial plaintiff are: That and defendant as are seized tenants in common of certain property described real city Louis; situate in the of St. “that the share said lands to plaintiff which is entitled is one-half, the interest of that the de- fendant therein is one-half, and plaintiff and that defendant are the ’’ simple thereof; plaintiff fee expended owners that has various sums money upkeep for the preservation of the common are out in A; plaintiff minute detail in his Exhibit that money has collected various way sums in the of rent for which he charged, should be and that after all credits are allowed the balance by expended of the plaintiff amounts so in behalf the common property $3,248.17. Continuing, prop- erty partitioned cannot be in kind prays made, sold,
owners and that be land ordered plaintiff accounting an between and that whatever may sum plaintiff accounting be found paid due to said be proceeds plaintiff sale, out of the such after all other expenses proceedings paid costs and of the have been the net balance equally plaintiff between and defendant. divided every allegation plaintiff’s Defendant’s answer denies each and admitted; plaintiff except specifically denies those alleged charges paid upkeep premises has for the in his A; admits “that fee petition and set out in his Exhibit plaintiff’s petition is now and to real estate described title in equal plaintiff parts, parties owned an entitled to undivided one-half is each and defendant is— charges then The answer said estate.” of one-half of encumbrance is indebted to defendant the amount been defendant have against alleged the property wbicb profits premises, all of certain rents and one-balf general accounting. reply is a aggregate $4,125, and asks for an The denial. ¡|_ i coming hearing, appears, from the on it canse The “ad- open out, that and defendant hereinafter set proper case for case was “a to the court mitted and stated” partition” property described admitted, and right partition was act- to a
under the court, entered an ing open so made said admissions closely follows very interlocutory judgment, decree omitting which, prayer petition, and plaintiff’s conforms to the showing presence at description and the recitation the land both in plaintiff and defendant hearing parties time attorneys, is as follows: person and their plain- having *3 and both the matter been advised about “The court having stated to the court that and admitted tiff and defendant property and partition of the real estate proper case case was a George attorney plaintiff, for said and the said hereinafter described prays for plaintiff the Devoto, J. to the that stated court admits defendant partition answer and that the amended partitioned, should be property and that said real estate adjudge decree, doth find, and at all times plaintiff said defendant and
“First: That the said present time, are and at pleadings herein mentioned improvements and all real estate common, seized as tenants follows: is described as property thereon, and said estate and property and lands of said “. . . that share thereof, is one-half likewise plaintiff, George Devoto, J. entitled to therein one- the defendant ownership and and in common are tenants defendant plaintiff half and and thereof that thereof. holding fee title also finds, adjudges
“The court and decrees that from the nature sought and property amount of said to be numbers divided and the thereof, and owners in kind of said real estate and property be made without cannot to the owners thereof and the court order, adjudge doth further and decree that said property according be sold highest to law to the following bidder terms, to-wit: one-third cash and the payments balance in one and two years, the deferred to be secured property of trust on said real estate deed and to bear interest annum, per at of six per privilege the rate purchaser with to the cent paying provided cash, all shall elect ap- he so do before the proval of the sale the court. plaintiff appearing “It pleadings and the plaintiff of defendant makes claim reimbursement on ac- by him on be- expended which he were count certain sums denies appearing that defendant property, of common and it half defendant plaintiff and that sums claimed entitled defendant for rents plaintiff account to contends that is entitled to for sums ex- to defendant profits, and is otherwise indebted on the work betterments done pended and for passing reserves property, plaintiff denies, the court common conflicting jurisdiction pass upon reserves upon said claims and any conflicting all and to that end it and decide said claims moneys arising from the of said sale ordered and decreed that until paid remain there court and property shall be into parties, adjudicated of the said claims aforementioned shall have found to be due either adjudicated sums, any, if so and when moneys arising from the said sale of party, shall be out of adjudged ordered, it is decreed but specified neither proceed sale shall as herein any or claim after property lien nor defendant shall have any they, if rights, either of sale, all their but moneys arising from the have, sale them, shall be satisfied out property.” of said The decree then names a commissioner requires sale, make such
that he file bond and fixes the conditions and terms thereof. objection Defendant entered no any and did preserve not note or exceptions thereto, but filed a judg- motion to set aside the ment and decree, complaining irregular the decree was erroneous in that the ordering court erred in property sale of the having first taken adjudication an account and made an pecuniary the controverted claims of *4 in out and answer. From the action of the in court overruling plaintiff’s motion, appealed appeal and his has come to this court. question No suggested by is raised or appellant either or re
spondent jurisdiction as to the of this court to entertain and de appeal,
termine this but an examination of the question record in the case arises, and since such jurisdiction conferred, cannot be by acquiescence either consent, or it is for us to ascertain sponte determine sua whether or not this jurisdiction court has appeal of [Cunningham herein. v. 63, Cunningham, 30 (2d) S. W. many and the cases therein cited and reviewed.] jurisdic- the circuit court is vested with all the power
tion chancery, though of a court procedure in jurisdiction exercise of that regulated is to some extent our stat- ute. In such suit, however, the circuit court as a equity, court of qnd can enforce trusts in tenants between common take account
515 moneys expended or improvements them rents and common preservation when such account- benefit or justice complete ing multiplicity in order to do and avoid a asked, present issue, this case no The contest or suits. concerning partitioned to the real or controversy, the title therein; parties appears for, quotations we have heretofore made from the alleges that he and defendant are tenants in com- answer, to, in, have fee title the real estate and that each is mon therein, all which is specifically of a one-half interest the owner only controversy answer. The and admitted defendant’s stated mode, manner proper in the ease relates to the and time of therefore taking adjudicating the account between and defendant. appeal theory comes this on Presumably, Cunningham involved, case, but as said the. real estate title to conclusively form of the action is “the mere determina- supra, question title to real estate is whether involved so as to tive of appeal upon To jurisdiction of the this court.” involve title confer meaning give within the the Constitution so as to real estate sought jurisdiction appellate “the or rendered this court directly will be such as determine title some measure or de- must adversely litigant another; one and in favor gree or as some litigant say, give title from one cases must take it to ’’ 318 2 McGaughey, 948, Bank v. Estate of Mo. another. [Nettleton The same case holds title S. W. to land must be 771.] Richardson, about which there is a contest and in Weil v. a matter 310, (2d) 348, says: 7 S. W. the court “Title must be the ” . dispute must be matter the suit. . . issue. It (Mo. App.), S. In Groes Brockman W. the Kansas Appeals City holds when the Court of of whether the incapable kind issue, controverted real estate jurisdic- appellate is involved so as to confer real estate the title to may court. since the tion this contended land be divided kind cannot this case prays owners to order same specifically deny the answer does not either sold and admit such allegation part therefore of the answer in the whereby general denial, of a nature “denies each and every allegation except in plaintiff’s petition spe- contained” those cifically admitted, issue, makes a controverted which under the au- thority foregoing However, case, case involves title. *5 arose; controversy actually testimony no was heard and no no such allegation of on that the and no such issue is contest made interlocutory judgment, decree and which we the case. The have out, plain- set finds the title to and the of the hereinabove the to be as stated, land admitted and con- tiff and answer; by partition; both the decrees finds the ceded of susceptible division kind sold; is not and orders same land allegations prayer of which is accordance with the all objection interlocutory Defendant entered no petition. decree preserved any exception nor thereto, and neither and is entered thereby. appeal Plaintiff took the herein, bound and we do not un- appealing from or complaining derstand about that part specifically of decree that so the found and declared that alleged and, he and asked for his said, we have question particular any does not decree in the defendant the what- be then, If the contention made that soever. the face of the allegation controverted pleadings there issue of the the relating the had, to kind of to be thereby estate, must to real we observe such dropped involved title issue interlocutory the entered, of this case when was out only controversy issue now in the the only that complaint case and accounting appellant
made relates to the side of this solely adjudication with do has determination suit purely pecuniary rights and claims. has It been held our courts appeal title is not involved of controversy where proceeds is over the distribution arising from a judgment. interlocutory of real estate under sale [Herchenroeder Herchenroeder, App. 283; Funk Funk, v. v. 205 Mo. App. So, only in the instant case the real and controversy relates 178.] pecuniary claims which, when as- determined, proceeds are to be out of certained must, therefore, appeal We hold that partition sale. in this case “involving title to estate” within meaning not one prescribing appellate jurisdiction. provision our constitutional Nor, pecuniary aggregate of all dispute amount claims in is the suf- jurisdiction. give this court ficient to hjs interlocutory decree, plaintiff charges to set aside the motion process denies him “due the decree law” violation of United and of this States Constitution State. ap- does not any question by plaintiff was constitutional raised pear any at during proceeding attempt get the course his time such assignment question thus into the case made his motion to interlocutory decree aside must held of no Raising avail. form; question question is not a matter mere a constitutional if not exist really [Canning it does it raised. exist not must 238 Mo. Packing Evans, No Co. constitutional & 599.] The determination of the ease. matters about which ap- in this exists by application general can be had complains pellant well legal procedure any rules of law and and does established *6 the Constitution of either the construction involve manner State. this States United 723, l. c. this Pigment 719, Co., & Chemical Stegall v. court said: due-process
“If be said that it could clause of the Constitu- every judgment time an erroneous is violated tion rendered process court, incorporating then the mo- trial assignment new trial the was for a tion erroneous provisions, every said constitutional therefore violated case could brought court for review. That such to this law is so of authority.” as need no citation self-evident jurisdictional in a is presented, No constitutional sense prerequisites none of the essential of our appellate find as we Constitution, jurisdiction, prescribed appeal, Appeals. St. Court must be transferred Louis cause Ellison, GG., concur. Seddon and so ordered. foregoing opinion FergusoN, C., PER CURIAM: The opinion judges
adopted the court. All as the concur. Appellant, Executor K. Gresham, Talbot, of Estate Violet James Phillips Marjorie Athey. of Louis Coleman, Anna Louise 31 S. W. 766. One, Division October 1930.