144 S.W.2d 149 | Mo. | 1940
Lead Opinion
This is a will contest.
[1] Appellants, proponents nisi, say we have jurisdiction by reason of the value of the estate. Where, as here, monetary relief is not sought and appellate jurisdiction turns on the amount involved, it is well settled that the amount in dispute "`must be determined by the value in money of the relief to the plaintiff, or of the loss to the defendant, should the relief be granted, or vice versa, should the relief be denied.'" [Aufderheide v. Polar Wave Ice Fuel Co. (Banc),
Whitworth v. Monahan's Estate (Div. I),
[2] We are mindful of the broad observations in Fowler v. Fowler (Banc),
Under a constitutional form of government, usurpations of power by a court of last resort become lurking menaces. The basic principles of our appellate jurisdiction are to be found in the Missouri Constitution. Where appellate jurisdiction of a will contest pivots on the amount involved, under the applicable constitutional and statutory provisions jurisdiction vests in this court, not by reason of the value *1047 of the estate but as in other instances, only "where the amountin dispute, exclusive of costs, exceeds the sum of" "seventy-five hundred dollars." (Italics ours.) [Section 12, Art. 6, and Secs. 3 and 5, Amend. 1884, Art. 6, Mo. Const., pp. 108, 118, R.S. 1929, and Sec. 1914, R.S. 1929.]
[3] In this important matter, involving our organic law, we have made appropriate observations and rulings. "`Jurisdiction "can neither be waived nor conferred by consent of parties."'" [Drew v. Platt,
[4] Absent some other determinative factor, the prayer of the petition in actions wherein monetary relief is sought ordinarily is resorted to for a determination of the amount in dispute. [Johnston v. Ramming,
[5] An action seeking specific monetary relief is distinguishable on the issue from a will contest. In the former the amount of relief turns on facts adduced in evidence. In the latter we judicially know the amount of the estate is proper subject matter for diminution in the course of administration. The value of the estate, while a factor, is not the sole factor determinative of appellate jurisdiction and the record must affirmatively and clearly show, after eliminating all proper items, that the amount in dispute between the litigants remains in excess of $7500 to vest jurisdiction here. So say the cases reasoning like issues. [Consult Whitworth v. Monahan's Estate, supra; Winn v. Matthews (Mo.), 130 S.W.2d 484[3]; Aurien v. Security Nat'l Bk. S. Trs. Co. (Mo.), 129 S.W.2d 1047[1]; Flynn v. Kinealy (Re Flynn's Estate),
The broad statements in Fowler v. Fowler, and Meyers v. Drake, supra, that the value of the estate determines appellate jurisdiction are in conflict with and in effect overruled by the holding of Court en banc in City of Doniphan v. Cantley,
The cause is transferred to the St. Louis Court of Appeals.
Addendum
The foregoing opinion by BOHLING, C., in Division Two is adopted as the opinion of Court en Banc. All concur exceptDouglas, J., not sitting.