Cobble ex rel. Cobble v. McDonald

Missouri Court of Appeals

Cobble ex rel. Cobble v. McDonald

309 S.W.2d 154, 1958 Mo. App. LEXIS 633

CourtMissouri Court of Appeals

DecidedJanuary 21, 1958

DocketNo. 7651

StatusPublished

Cited by1 cases

This text of 309 S.W.2d 154 (Cobble ex rel. Cobble v. McDonald) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cobble ex rel. Cobble v. McDonald, 309 S.W.2d 154, 1958 Mo. App. LEXIS 633 (Mo. Ct. App. 1958).

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Opinion

RUARK, Judge.

Plaintiffs’ original petition was in three counts, wherein claim was made in separate counts for $40,000, $400 and $3,000. Defendant filed answer asserting several defenses and also a counterclaim claiming damages in amount of $500. Thereafter plaintiffs filed amended petition claiming (in separate counts) $40,000, $10,000, $400, $3,000, and $5,000. Defendant filed motion; to dismiss on the ground that the defendant named in the first petition had died pending litigation, that there had been no action; taken for substitution of proper parties as required by section 507.100, as amended,-. Laws .of 1953, p. 313, V.A.M.S., and that more than one year had elapsed since death, and notice of death of the defendant. This, motion was sustained and plaintiffs’ cause was dismissed. Thereafter the plaintiffs-(eventually) appealed to this court.

It is our opinion that jurisdiction of this-appeal lies in the Supreme Court, because, as affirmatively appears on the record, the amount involved and actually in dispute as a live issue is far in excess of $7,500. Art. 5, sec. 3, Constitution of 1945, V.A.M.S.; Schmidt v. Morival Farms, Mo.App., 232 S.W.2d 215; Mo., 240 S.W.2d 952; Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763; see Heuer v. Ulmer, Mo.App., 264 S.W.2d 895.; Mo., 273 S.W.2d 169.

Having determined that we have no jurisdiction because of the excess in amount; we are bound' to transfer the case to the Supreme Court, and we pass the pot to that [155]*155court without stirring, probing, or sampling the contents. Art. 5, sec. 11, Constitution of 1945; Starr v. Mitchell, Mo.App., 231 S.W.2d 299; Mo., 237 S.W.2d 123; Winslow v. Sauerwein, 365 Mo. 269, 282 S.W.2d 14; see Taney County v. Addington, Mo. App., 296 S.W.2d 129; Mo., 304 S.W.2d .842; but see also McMurray v. Kansas City Gas Co., 353 Mo. 1180, 186 S.W.2d 593.

It is ordered that the cause be transferred 'to the Supreme Court.

STONE, P. J., and McDOWELL, J., concur.

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RUARK, Judge.

Plaintiffs’ original petition was in three counts, wherein claim was made in separate counts for $40,000, $400 and $3,000. Defendant filed answer asserting several defenses and also a counterclaim claiming damages in amount of $500. Thereafter plaintiffs filed amended petition claiming (in separate counts) $40,000, $10,000, $400, $3,000, and $5,000. Defendant filed motion; to dismiss on the ground that the defendant named in the first petition had died pending litigation, that there had been no action; taken for substitution of proper parties as required by section 507.100, as amended,-. Laws .of 1953, p. 313, V.A.M.S., and that more than one year had elapsed since death, and notice of death of the defendant. This, motion was sustained and plaintiffs’ cause was dismissed. Thereafter the plaintiffs-(eventually) appealed to this court.

It is our opinion that jurisdiction of this-appeal lies in the Supreme Court, because, as affirmatively appears on the record, the amount involved and actually in dispute as a live issue is far in excess of $7,500. Art. 5, sec. 3, Constitution of 1945, V.A.M.S.; Schmidt v. Morival Farms, Mo.App., 232 S.W.2d 215; Mo., 240 S.W.2d 952; Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763; see Heuer v. Ulmer, Mo.App., 264 S.W.2d 895.; Mo., 273 S.W.2d 169.

Having determined that we have no jurisdiction because of the excess in amount; we are bound' to transfer the case to the Supreme Court, and we pass the pot to that [155]*155court without stirring, probing, or sampling the contents. Art. 5, sec. 11, Constitution of 1945; Starr v. Mitchell, Mo.App., 231 S.W.2d 299; Mo., 237 S.W.2d 123; Winslow v. Sauerwein, 365 Mo. 269, 282 S.W.2d 14; see Taney County v. Addington, Mo. App., 296 S.W.2d 129; Mo., 304 S.W.2d .842; but see also McMurray v. Kansas City Gas Co., 353 Mo. 1180, 186 S.W.2d 593.

It is ordered that the cause be transferred 'to the Supreme Court.

STONE, P. J., and McDOWELL, J., concur.

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309 S.W.2d 154, 1958 Mo. App. LEXIS 633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobble-ex-rel-cobble-v-mcdonald-moctapp-1958.

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