352 S.W.2d 932 | Mo. Ct. App. | 1962
Shortly after midnight on May 3, 1959, plaintiff was riding in a 1953 Mercury
Following the suggestion of plaintiff’s counsel by letter dated January 19, 1962 (without, however, any citation of authority), “that this case more than likely is erroneously lodged” in this court, we have addressed ourselves to the question of our appellate jurisdiction. As disclosed and established by plaintiff’s motion for new trial, his appeal “from the judgment entered in behalf of the plaintiff,” i. e., from the judgment against defendants Mosher and Munro in the sum of $2,500, is predicated on the contention that the verdict against those defendants was grossly inadequate. In these circumstances, it has been declared repeatedly that the general rule is that “the amount in dispute, exclusive of costs” [Art. 5, Sec. 3, Const. of 1945] is the difference between the amount prayed for and the amount of the judgment in the trial court. Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 725(1); Davidson v. Schneider, Mo., 349 S.W.2d 908, 909(1); Rossomanno v. Laclede Cab Co., Mo. (banc), 328 S.W.2d 677, 679(1); Glore v. Bone, Mo., 324 S.W.2d 633, 634(1, 2) ; Baker v. Brown’s Estate, 365 Mo. 1159, 294 S.W.2d 22, 24(1); Thompson v. Healzer Cartage Co., Mo., 287, S.W.2d 791, 792(1) ; Combs v. Combs, Mo., 284 S.W.2d 423, 424(1); Conner v. Neiswender, 360 Mo. 1074, 232 S.W.2d 469, 470(1); Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481, 482(1). With instant plaintiff praying for $75,000 and having been awarded $2,500, the amount in dispute is $72,500, far in excess of our expanded jurisdictional limit [Sec. 477.040], and we must transfer this cause to the Supreme Court unless the general rule is inapplicable by reason of “exceptional circumstances” [Glore v. Bone, supra, 324 S.W.2d loc. cit. 634; Combs v. Combs, supra, 284 S.W.2d loc. cit. 424], such as
In ascertaining whether there are such “exceptional circumstances,” the inquiring court is not restricted to the pleadings and the judgment [Mitchell v. Southwestern Bell Tel. Co., supra, 298 S.W.2d loc. cit. 522(1) ; Daly v. Schaefer, supra, 331 S.W.2d loc. cit. 151(1)] but, as our Supreme Court frequently has done, should pierce the shell of the pleadings, proof, record and judgment sufficiently far to determine that the proper jurisdiction of that tribunal is not infringed upon and that improper jurisdiction is not foisted upon it by design, inadvertence, or mere colorable amounts. Johnson v. Duensing, Mo. (banc), 332 S.W.2d 950, 953; Vannorsdel v. Thompson, Mo., 315 S.W.2d 121, 122; Baer v. Baer, 364 Mo. 1214, 274 S.W.2d 298, 303 (5); Lemonds v. Holmes, 360 Mo. 626, 229 S.W.2d 691, 693(6); Simmons v. Friday, 359 Mo. 812, 224 S.W.2d 90, 94(6). For, “(p)arties do not have the unbridled whimsical power to control appellate jurisdiction by a mere stroke of the pen in their pleadings.” Beasley v. Athens, supra, 277 S.W.2d loc. cit. 539; Strothkamp v. St. John!s Community Bank, Inc., supra, 329 S.W.2d loc. cit. 720.
Recognizing that, even as our Supreme Court is fearless and faithful in decrying and shunning usurpation of power by unwarranted assumption of jurisdiction [Beasley v. Athens, supra, 277 S.W.2d loc. cit. 539(4) ; Strothkamp v. St. John’s Community Bank, Inc., supra, 329 S.W.2d loc. cit. 721], we should be cautious and conscientious in eschewing impetuous renunciation, hasty denial or unjustified disclaimer of jurisdiction, the transcript on appeal in this case has been read in its entirety and considered carefully. As in Vogrin v. Forum Cafeterias of America, Mo.App., 301 S.W.2d 406, 409 [Id., Mo., 308 S.W.2d 617], there has been no admission or indication that plaintiff would regard as adequate or reasonable a judgment not in excess of $17,500 (i. e., no more than $15,000 in excess of the $2,500 judgment obtained against defendants Mosher and Munro). Contrast Beasley v. Athens, supra, 277 S.W.2d loc. cit. 539, and Daly v. Schaefer, supra, 331 S.W.2d loc. cit. 151. Of course, plaintiff’s counsel might, by some such concession in his appellate brief or oral argument, ticket himself and his client for another ride on the jurisdictional merry-go-round and another stop on our stoop. Compare Davis v. Ball, Mo.App., 271 S.W.2d 605; Heuer v. Ulmer, Mo., 273 S.W.2d 169; Haley v. Horwitz, Mo., 286 S.W.2d 796, 797(1). However, in the present posture of the case, we find no “exceptional circumstances” which would enable us to escape the conclusion that, for appellate jurisdictional purposes, the amount in dispute is $72,500 (i. e., the difference between $75,000, the amount prayed for, and $2,500, the amount of the judgment from which plaintiff appeals) ; and, in this situation, we have neither right nor reason to borrow trouble and delay for the litigants by anticipating that their appellate briefs or arguments might permit a contrary conclusion.
In our review of the case, we have not overlooked defendant Groff’s motion to dismiss the appeal as to him and plaintiff’s consent to the sustention of that motion
The clerk of this court is directed to transfer this cause forthwith [Sec. 477.080], together with a copy of this order, to the clerk of the Supreme Court of Missouri.
. All references to rules are to Supreme Court Rules, V.A.M.R., and all refer-enees to statutes are to RSMo 1959, V.A.M.S.