4 S.W.2d 1062 | Mo. | 1928
Suit in equity in the Pemiscot Circuit Court, brought by appellant to subject real estate belonging to respondents to the lien of a judgment obtained by appellant against the deceased grantor of respondents. Respondents filed an amended answer, to which appellant filed reply. Thereafter respondents moved for judgment on the pleadings. Said motion was sustained by the trial court and judgment went accordingly. Thereafter an appeal was granted to this court.
The appellate jurisdiction of this court has not been challenged. But it is our duty to determine that question for ourselves before we are authorized to enter into a consideration of the merits of the case. [Village of Grandview v. McElroy, 298 S.W. (Mo.) 760, and cases cited.]
The amount involved in this case is the unpaid portion of a judgment for $3500. Appellant seeks to have this judgment declared a lien on the real estate. Unless the relief sought involves the title to real estate, we have no appellate jurisdiction. Title may be indirectly affected by the granting of the prayer of the petition, because the real estate might be sold under an execution issued on the judgment, if such judgment is declared a lien upon said real estate. But this is exactly what occurs whenever any judgment for money only is rendered. The question is whether title to real estate is involved in the sense meant by Article VI, Section 12, of our Constitution. Appellant does not dispute respondents' title to the real estate. The object of the suit is to have appellant's judgment declared to be a lien upon the real estate superior to respondents' conceded title.
In Bailey v. Winn,
In Balz v. Nelson,
In Klingelhoefer v. Smith,
A suit to establish a lien upon real estate does not directly involve title to real estate. [Bruner Granitoid Co. v. Klein,
Appellant cites and relies upon Truesdale v. Brennan,
In holding that title to real estate was involved, the Court of Appeals cited Overton v. Overton,
Appellant cites Loewenstein v. Insurance Co.,
Hence, it appears that our jurisdiction is claimed by appellant (and by respondent as well) upon the sole authority of Truesdale v. Brennan, supra. That case appears to be in conflict with other cases we have cited and should not be followed. The mere fact that the priority of liens, as between a judgment of record and some claim of the respondents, is at issue, does not give the Supreme Court jurisdiction, where it would have none if only the establishment of one lien was sought. See Stark v. Martin, supra, where GRAVES, J., said: *573
"Is title to real estate involved within the meaning of Section 12 of Article VI of the Constitution? We think not. The most that can be said of this petition is, that it seeks to have the written instrument sued upon declared a first lien upon the land in dispute, and then a foreclosure of such lien. In other words, it asks the court to find the amount of a lien and enforce the same by special execution prior to other admitted liens pleaded. Neither by the petition nor by the answers is it sought to have even a mortgage or deed of trust cancelled. At most the trial court was called upon to determine the mere priority of liens. The title, by all parties, is admitted to be in Ed. Martin. If the court had entered judgment for plaintiff, the same might have been satisfied by a payment of the judgment. In such cases we have held that title to real estate is not involved in such manner as to give this court jurisdiction."
Finding that the title to real estate in the constitutional sense (Art. VI, sec. 12) is not involved in this case and there being no other ground upon which our appellate jurisdiction may be invoked, the cause should be transferred to the Springfield Court of Appeals. It is so ordered. All concur.