Opinion
No. 7042.
April 23, 1952.
APPEAL FROM THE CIRCUIT COURT, DIVISION NO. 1, JASPER COUNTY, WALTER BAILEY, J.
Charles D. Tudor, Webb City, Ray E. Watson, Watson, Richart Titus, Joplin, for appellants.
Roy Coyne, Joplin, Max Glover, Webb City, for respondents.
This is an action in ejectment to recover possession of real estate and for damages, rents and profits. The answer was a general denial and a plea to have the title quieted in defendants on grounds of adverse possession. Judgment was rendered for defendants on plaintiffs' petition and the title quieted in defendants to the lands involved. Plaintiffs appealed.
The petition is in the usual form alleging that plaintiffs were legally entitled to the possession of the lands involved; that defendants entered into possession of the premises and unlawfully retained possession thereof to plaintiffs' damage, etc. The answer amounts to a general denial of the allegations of the petition and asks that the title to the lands be quieted in defendants by virtue of the statute of limitations. The answer also contained two counterclaims, the last seeking to have the title quieted in defendants by virtue of the statute of limitations.
The cause was tried in the Circuit Court of Jasper County, Division I, and the following judgment rendered:
"* * * The Court finds the issues in favor of the defendants upon plaintiffs' petition herein and that the defendants are entitled to have the title to the north four feet of lot 313, Byers and Ball's Addition to the City of Webb City, Jasper County, Missouri, carried in said defendants; and the Court further finds the issues in favor of the plaintiffs upon the defendants' counterclaim herein.
"It is therefore ordered and adjudged by the Court that the plaintiffs take nothing by their petition herein; that the defendants are the owners of the north four feet, more or less, of lot 313 in Byers and Ball's Addition to the City of Webb City, Jasper County, Missouri, and that the fee simple title to said four feet be carried in the defendants, free and clear of any and all claim of the plaintiffs. * * *"
To avoid confusion we will refer to appellants as plaintiffs and to respondents as defendants in this opinion.
In defendants' statement, brief and argument, the following statement is made:
"The real issue in this case was whether or not the Appellants can come into Court and lay claim to a strip of land which had for more than 10 years last past been under the control of, and claimed by, Respondents and their predecessors in title."
And, under points and authorities of defendants' brief, point 1, sub-head (4), defendants state:
"Defendants can establish title to a strip of land through adverse possession by claiming to a line regardless of whether that line is the true boundary or not."
The first question this court must decide is whether or not it has jurisdiction.
It is suggested in defendants' brief that the title to real estate is directly involved but whether raised or not it is our duty to determine the question of jurisdiction. Miller v. Haberman, Mo.App., 219 S.W.2d 656; Ashauer v. Peer, 346 Mo. 218, 139 S.W.2d 991; Perkins v. Burks, Mo.Sup., 61 S.W.2d 756.
If the title to real estate is directly involved the jurisdiction of that issue is in the Supreme Court. Constitution of Missouri, 1945, Article V, Section 3, V.A.M.S.
To determined the issues to be tried by the trial court we must examine the pleadings.
In Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229, 230, the court states the law thus:
"* * * Since the office of the pleadings is to define and to isolate the issues to those controverted so as to advise the trial court and the parties of the issues to be tried and to expedite the trial of a cause on the merits, the absence of a formal pleading traversing the allegations of the answer should not be considered prejudicial to a party defendant who understood what issues were being tried."
In Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, 28, the court states:
"* * * The basic principle of the new Code provisions is just the opposite. The aims is to determine what are the controversial issues before the trial begins, and limit the trial to them. General Principles, The Civil Code Act of 1943, Hon. Laurance M. Hyde and Hon. James M. Douglas, 14 M.B.J. 315. * * * But the pleadings continue to be of the greatest utility in defining issues of a case. * * *"
Under the pleadings alone the controversial issues are isolated.
One of the issues raised by defendants' answer, that, if defendants are found to be in possession of the lands sought to be recovered in plaintiffs' petition, defendants are entitled to have title to the same quieted in them in that they and their predecessors in title have held the same openly, adversely, continuously, exclusively, hostilely, and notoriously to the whole world and have paid the taxes on the same for more than 31 years last past. In other words, defendants plead they are entitled to the property in question because they have the title thereto by statute of limitations. The cause was tried on this theory by the trial court. This directly puts the title to the land in question in issue.
Likewise, defendants' counterclaim seeks to have the title quieted in defendants by virtue of the statute of limitations.
The judgment of the trial court passes directly upon the title quieting it in defendants and finds against plaintiffs on plaintiffs' petition. Therefore, we find that title to real estate is directly involved by the issues in this case and jurisdiction is in the Supreme Court.
It is argued by plaintiffs that, under the admissions of defendants in the testimony, there is no issue of title. But we cannot pass upon the question of whether or not defendants made a submissible case under the evidence when the issue is one to determine title. That question must be passed upon by the Supreme Court.
It is the order and judgment of this court that this case be transferred to the Supreme Court, because the question of title to real estate is directly involved.
VANDEVENTER, P. J., and BLAIR, J., concur.