Gary Realty Co. v. Kelly , 284 Mo. 418 ( 1920 )

The appeal in this case is from an order of the circuit court overruling a motion to quash a writ of restitution.

The plaintiff brought suit before a justice of the peace in Jackson County, in unlawful retainer, against the defendants E.P. Kelly, W. LeDoux, A. LeMarquand and Paul LeMarquand; the case was certified to the Circuit Court of Jackson County, where, March 18, 1916, judgment was entered in favor of the plaintiff against said defendants, awarding possession of certain premises in Kansas City, assessing damages for the unlawful detention of the property at $2,000, and the monthly rents and profits at $650, which were doubled by an order of the court and judgment rendered for $4,000 damages, and $1300 per month for rents and profits until the restitution of the premises. The case was appealed to this court where the judgment of the circuit court was affirmed. [Gary Realty Co. v. Kelly, 214 S.W. 92.] After affirmance of the judgment, August 6, 1919, execution was issued for the amount of the damages and costs then accrued, commanding the sheriff to deliver possession to the plaintiff. The amount of damages accrued at the time, including rents and profits up to the date of the issuance of the execution, and doubled in accordance with the terms of the judgment, was $32,829.29.

On August 7, 1919, G.F. Bonfils and Henry G. Tammen, not parties to the suit or the judgment, filed in the circuit court a motion to quash that part of the execution awarding possession to the plaintiff, leaving the execution for the money judgment against the defendants unaffected. This motion was presented under Section 2244, Revised Statutes 1909, which provides that any person "against whose property any execution or order of sale shall be issued" may apply to the circuit court for the purpose of having the same quashed. The motion sets up certain alleged irregularities in the certiorari proceeding, whereby the cause reached the circuit court from the justice of the peace, and alleges, among other things, that the movents are the owners of the property and the holders of the lease upon it.

The motion thus filed by Tammen and Bonfils, on the second day of September, 1919, was overruled, and the same day the movents filed their application and affidavit for appeal and their appeal was granted to the Supreme Court.

After the cause reached this court, a motion was filed therein by the respondents, November 24, 1919, to require the appellants to give a new supersedeas bond on the ground that the appeal bond given did not comply with Sections 7711 and 7728, Revised Statutes 1909. This court sustained the motion, but the appellants, movents, failed to comply with the order and the plaintiffs were put in possession of the premises February 12, 1920, six months and six days after the execution was issued.

The appellants then filed a motion in this court to transfer the cause to the Kansas City Court of Appeals on the ground that this court is without jurisdiction, and that motion must now be considered.

I. The title to real estate is not involved and the only question, to be determined in settling the matter of jurisdiction is the money value of the property in issue. If the amount involved exceeds in value seven thousand five hundred dollars (7,500) then this court has jurisdiction;Appellate otherwise, not. To determine the amount in disputeJurisdiction. we must ascertain the facts from the entire record. [Keleher v. Johnson, 272 Mo. 699, l.c. 701; State ex rel. v. Ellison, 272 Mo. 571, l.c. 580; State ex rel v. Reynolds, 245 Mo. 704; Wilson v. Drainage Levee District, 237 Mo. l.c. 40; Bridge Co. v. Transit Co., 205 Mo. l.c. 179-80; Vanderberg v. Gas Co., 199 Mo. l.c. 459; Kitchell v. Ry. Co., 146 Mo. l.c. 457.]

"Where relief is sought other than in the recovery of a money judgment, the value of the right necessarily involved, estimate in money, will constitute the measure of jurisdiction." [State ex rel. v. Reynolds, 275 Mo. 113, l.c. 121.] As otherwise stated in Gast Bank Note Co. v. Fennimore Assn., 147 Mo. l.c. 559, "``the amount involved must be determined by the value in money of the relief to the plaintiff, or of the loss to the defendant, should the relief prayed be granted, or vice versa, should the relief be denied.'" This statement of the rule is repeated in several cases. [State ex rel. v. Reynolds, 256 Mo. l.c. 718; McCoy v. Randall, 222 Mo. l.c. 34; Clothing Co. v. Watson, 168 Mo. l.c. 143; Fred A.H. Garlichs Co. v. Anderson, 284 Mo. 200.]

II. It is claimed by respondent that the money value involved, as affected by the ruling on the motion, is much more than the value of the premises during the period of six months and six days, when the plaintiffs were kept out of possession, from the time the execution was issued until possession wasValue of delivered. They assert that a ruling on the motionPossession. will determine the right of possession of the property, and the value of that possession must be ascertained, not only during the period mentioned, but extending afterwards, at least until a final determination of the cause in this court. If the action of the trial court were reversed the ruling would not restore the movents to the possession which they lost February 12, 1920. If they should resort to another action to recover possession, the amount involved in such other action would determine the jurisdiction of the court to which an appeal would lie then; that amount is not involved in this proceeding. On the other hand, if the judgment of the circuit court overruling the motion should be affirmed, the time of possession affected by the result would be merely the period during which the plaintiff was kept out of it; the ruling would determine that the movents were in possession six months and six days when they had no right. It would not affect subsequent actual possession. The ruling might, in a subsequent suit, be res adjudicata as to the right of possession, but the direct loss or gain to plaintiff by the ruling would involve only the possession during that period. It is the amount determined in this suit that settles the jurisdiction and not the right which may be incidentally affected.

III. "The amount in dispute" then must be found in ascertaining the value of the possession of the premises during the period of six months and six days in which the plaintiffs were deprived of possession by the motion (it seems to be conceded thatDouble the effect of the motion was to keep the plaintiffs outDamages. of possession during that period). Respondent asserts that inasmuch as the judgment on which the execution was issued awarded doubled damages and doubled rents and profits, the judgment settled the amounts of its loss of the possession during that period.

If the respondent is correct in that, then this court has jurisdiction, because the amount would be in excess of $7,500. If the actual value of the possession of the premises during the period is to be taken as the amount in dispute, then this court has no jurisdiction. The judgment found the value of the rents and profits at six hundred and fifty dollars a month, and evidence taken at the time of the appeal for the purpose of determining jurisdiction did not show the monthly value to exceed one thousand dollars.

It will be remembered that the movents here were not parties to the original judgment. The execution was not issued against them. If their motion had been sustained, it would not have affected the liability of the original defendants in the execution. According to the statement in respondent's brief a new execution was issued on the twelfth day of February and possession delivered to plaintiff under it. This new execution is not set out in the record: presumably it is an alias in accordance with the requirements of the statute. So far as this record shows, the plaintiff may have recovered under that execution against the original defendants, the entire doubled damages, rents and profits up to the time possession was delivered. The plaintiff was not prevented by the motion from leveying its execution for the full amount; it was prevented from getting possession. When it was deprived of possession during six months and six days what did it lose? Not the doubled rental value of the possession, but the actual possession. The penalty of doubled damages, which is attached as an incident to being deprived of possession did not accrue to plaintiff because it was damaged in that amount, but because by the judgment defendants had violated the law and incurred the penalty thus inflicted. The execution, if not already collected, may still be collected of the defendants, not the movents, in double the rental value.

The amount involved in this case is not sufficient to bring it within the jurisdiction of this court, and the case is therefore transferred to the Kansas City Court of Appeals. Railey andMozley, CC., concur.