52 Mo. App. 220 | Mo. Ct. App. | 1893
— This is a proceeding against a justice of the peace to compel him to certify a cause and transmit the papers and process therein to the clerk of the circuit court, for the reason that the defendant therein had filed an affidavit putting the title to real estate in issue therein as provided in section 6219, Revised Statutes, 1889. The complaint and the sworn plea of defendant (if such it may be termed), setting up that title to real estate was in issue, were set out in the alternative writ, and the correctness of which were admitted by the return of the justice. It is thus made to appear that the proceeding before the justice was based, or intended no doubt to be, upon the provisions of sections 6397, 6398 and 6399. Defendant therein filed .a statement wherein he denied that he was the tenant of the plaintiffs or had ever recognized them as owners of the premises; that he was the tenant of T. J. Hudson, the legal owner of the title to the premises. It was not verified by the oath of the defendant, or by that of any person in his behalf. There was, however, appended the oath of Fred. M. Hays, to the effect that “he was one of the agents of T. J. Hudson, who claims to be the owner of said premises; that the above claim is made in good faith and not for delay, but because the title to said property is involved in this suit.”
Viewed as a pleading it is certainly very informal. It may be well doubted whether it is the pleading contemplated by the statute. It is certainly not verified either by the oath or affidavit of the defendant or by anyone in his behalf. But, while this is so, we think that it sufficiently appears from the complaint and statement filed by the defendant whether the latter be denominated a pleading or not, that the title to real estate is the dominating issue in this case. The question decisive óf the case was whether or not the plaintiffs had acquired the title in the manner they
But, conceding that the title to said real estate was in issue before the justice, still have we jurisdiction of the appeal? This question we are now bound to decide. By section 12, of article 6, of the constitution, it was provided that appeals should lie from the decisions of the St. Louis Court of Appeals to the supreme court, and writs of error should issue from the supreme court to said court in the several cases in the section enumerated. By the fifth section of the amendment extending the jurisdiction of the St. Louis Court of Appeals, and establishing the Kansas City Court of Appeals, it is provided that, in all cases or proceedings reviewable by the supreme .court, writs of error shall run from the supreme court directly to .the circuit courts, and in all causes or proceedings appeals shall lie from such trial courts directly to the supreme court, and that the supreme court shall have exclusive jurisdiction of such writs of error and appeals. So that this amendatory section placed the several cases enumerated in said section 12 without the jurisdiction of the courts of appeal.
In State ex rel. v. Rombauer, 101 Mo. 499, it is stated that the supreme court remains the final arbiter in all those cases enumerated in section 12, article 6, of the constitution, and that the courts of appeal are without jurisdiction, original or appellate, in any of
Since the subject-matter of this proceeding is a case involving title to real estate, it is quite difficult to understand why under the constitutional provisions already referred to it is not without our jurisdiction. It is quite true that this is not an appeal from a decision by the trial court of an issue of title to real estate, but the subject-matter of the appeal is so related to a case which does involve the title to real estate as to exclude our appellate jurisdiction.
If the defendant in the suit before the justice had applied to us to issue the writ of mandamus or prohibition against the justice by virtue of the power given us by said section 12, article 6, of the constitution, to issue these and other remedial writs, and to hear and determine the same, and we had done so, the very first question we should have been obliged to decide would have been whether the title to real estate was in issue in the case about to be tried before him. Would not the determination of that fact in the affirmative have excluded our jurisdiction as well as that of the justice?
How could we exercise a superintending control over the justice to revise his action in respect to
It is quite true, as contended by the relator, that the circuit court was not called upon in this proceeding to decide the issue of title, yet it was called upon to decide a question in a case which did involve title and over which it must be conceded we have no jurisdiction.
The action of the circuit court in such cases is subject alone to the supervising control of the supreme ■court. Since the decision in 101 Mo. 499, supra, and that rendered by us in State ex rel. v. Allen, 45 Mo. App. 551, we do not feel bound to follow the case of Bennett v. McCaffrey, 28 Mo. App. 220, decided by the St. Louis court of appeals.