[14] This suit in еquity was brought by the plaintiffs to enjoin the defendants from using and trespassing upon a thirty foot strip of ground adjoining the east side of plaintiffs’ Lot No. 5 in Iiillcrest No. 3, a subdivision in St. Louis County. The defendants filed an answer and counterclaim and the case was tried by the court. Judgment was rendered dismissing both plaintiffs’ cause of action and defendants’ counterclaim. The plaintiffs were allowed a delayed appeal to the St. Louis Court of Appeals, whiсh court held that title to real estate was involved and transferred the case to this court. See Winslow v. Sauerwein, Mo.App.,
The amended petition upon which the case was tried consisted of two counts. The first count was substantially the same as the original petition and alleged that [15] the disputed strip was set aside as q private street by those who platted the subdivision and that the plaintiffs were owners in fee simple of that portion of the thirty foot strip east of plaintiffs’ lot No. 5. Count II (more fully explained later) claimed only an easement in the disputed strip. Defendants’ counterclaim alleged that the thirty foot strip in dispute was an open and рublic street; that the plaintiffs and the other abutting property owners did not have any right, title or interest in it, and prayed that judgment be rendered declaring the disputed tract to be an open and public street, and further prаyed that the “Court ascertain the rights of all parties to this Cross Petition.”
The judgment of the trial court dismissing plaintiffs’ bill and defendants’ counterclaim is as follows:
“This cause having been heretofore submitted to the Court upon the plеadings, evidence and proofs adduced, and the Court having seen and heard the same and being now duly and fully advised of and concerning the premises, finds the issues herein joined in favor of the defendants and against the plaintiffs on Count I and Count II of plaintiffs bill in equity and dismisses plaintiff’s bill in equity, and the Court further finds the issues' in favor of plaintiff and against defendants Sauerwein on said defendants counter-claim. WHEREFORE, it is ordered and ad *271 judged by the Court that plaintiff’s bill in equity be and is hereby dismissed, and that defendants Sauerwein take nothing by their counter-claim herein against plaintiffs and that said defendants go hence without day and with their costs herein incurred. Memorandum of Court filed.”
The memorandum referred to in the judgment is as follows:
“After hearing the evidence, reading and considering the briefs and authorities, bearing upon the questions involved, the Court finds as follows:
“1. That plaintiffs are the owners by the entirety of Lot 5 of Hillcrest No. 3, according to plat recorded in Plat Book 30, pagе 103.
“2. That plaintiffs do not own the fee of the thirty-foot strip in front of their lot, but merely have an interest or easement therein, in common with others similarly situated, to use the same for ingress and egress to their property, abovе described.
“3. That the thirty-foot strip is not a public street, but a private right-of-way.
“4. That no single owner, alone, of any lot abutting on said right-of-way thirty-feet wide, can maintain a suit of this nature under the circumstances in this case.
“5. That in view of the above, neither plaintiffs Winslow nor defendants Sauerwein (on their counter-claim) can recover, and judgment will be entered accordingly today.”
Plaintiffs’ motion for new trial was limited to Count II of plaintiffs’ petition. The only relief the motion sought was to set aside the judgment and decree “herein rendered in favor of defendants and against these plaintiffs on Count II of plaintiffs’ petition.” Defendants did not file a motion for new trial, nor did they appeal.
For the purpose of determining the questions involved on this appeal, Count I of plaintiffs’ petition and the defendants’ counterclaim must be disregarded. The issues made by those pleadings have gone оut of the ease completely because no allegations of error with respect to their disposition were presented to the trial court by motions for new trial. Section 512.160, RSMo 1949, provides that “no allegаtions of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court.” Rule 3.23 of the Rules of the Supreme Court is even more [16] definitivе. Insofar as is pertinent here, Rule 3.23 provides “Allegations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for new trial.” The St. Louis Court of Appeals recognized, in the recent case of Wright v. Ickenroth, Mo. App.,
The appellate jurisdiction of the supreme court is determined by the kind of questions properly preserved and presented for review
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and such questions are not necessarily the sanie as those contested in the trial court and determined by its judgment. For example, a failure to raise a constitutional question in a motion for new trial waives such question and it cannot be presented for the first time in appellant’s brief. State ex rel. Wallach v. Oehler,
It is not necessary to determine whether Count I of plaintiffs’ amended petition or the defendants’ counterclaim involved questions of title to real estate, because the issues raised by these pleadings have not been prеserved for review. Shanks v. St. Joseph Finance & Loan Co., Mo.,
In order to determine if title to real estate is involved, we must look to the more limited subject matter of Count II of plaintiffs’ amended petition which alleges in substance: Plaintiffs as husband and wife are owners of Lot 5 of Hillcrest No. 3 by reason of a warranty deed duly recorded July 18, 1940; that plaintiffs’ immediate predecessors in title, being the owners of all the lots in Hill-crest No. 3, carved thirty feet from the eastern side of Lots 1, 2, 3, 4, 5 and 6, and made a private dedication of the strip so carved; that plaintiffs and other owners of lots in Hillcrest No. 3 have used the private street sometimes referred to as Hillcrest Place аs tenants in common and plaintiffs “have an exclusive easement in common with the other lot owners in HILLCREST NO. 3 for the private use of the PRIVATE STREET so marked PRIVATE on the plat of said HILLCREST NO. 3”; that defendants and their agents and servants have trespassed over, along and upon the easement against plaintiffs’ wishes; that defendants “have no right, title or interest to the realty so being used by them” and “these plaintiffs along with the other land owners in HILLCREST NO. 3 have an exclusive easement to use the said Private Street”; that plaintiffs have repeatedly asked defendants to desist from using said private street but defendants have refused and threaten to continue the acts of using the realty to which thеy have no right, title or interest. Plaintiffs allege they have no adequate remedy at law and pray for an order “enjoining defendants and their agents and servants acting under and for them from further using and trespassing over, along and upon the Private Street described in Plat of HILLCREST NO. 3 which is recorded in *273 Plat Boob 30, Page 103, of the St. Louis County Records” and damages of $1000.00.
Besides specific responses to the paragraphs of the petition, the answer of defendants Sauerwein consisted of a general denial and a plea that plaintiffs never owned the street or any portion of it and plaintiffs “have no right, title .or interest in said property as set forth in plaintiffs’ petition.” 1 We do not need to consider plaintiffs’ [17] reply to defendants’ counterclaim, since it went out of the case with the counterclaim.
Of the cases cited by respondent, Linders v. Linders,
The finding in the “Mеmorandum of Court” that plaintiffs had an interest or easement in common with others similarly situated for ingress and egress to their property, and that the tract was not a public street but a private right-of-way, was decided only as an incident or step in the ultimate disposition of Count II by dismissal. This, the memorandum stated, was because no single owner of any lot abutting on said thirty foot right-of-way could maintain the suit. Consistent with the prior decisions of this court, we hold thаt this ease on appeal does not involve title to real estate within the meaning of Article Y, § 3 of the 1945 Constitution of Missouri. In the recent case of Judge v. Durham, Mo.,
The respondents filed in this court a motion entitled “Motion to Remand” which prays that “the cause be remanded to the St. Louis Court of Appeals, with instructions that the above cause be dismissed. ’•’ Since no grounds exist for jurisdiction in the supreme court, it is ordered that the case be retransferred to the St. Louis Court of Appeals. Tо that extent only respondents’ motion is sustained; in all other particulars the motion is overruled since the court of appeals and not this court has jurisdiction to determine the. case on appeal.
Notes
The transcript does not show the filing or refiling of an answer to the amended petition, but apparently the parties and court treated the case as if defendants’ answer and counterclaim filed to the original pеtition had been refiled and we so consider it for the present purpose. The pleadings of additional parties brought into the ease on application of the original defendants need not be considered since the issues on appeal are between the plaintiffs and defendants Sauerwein.