After the explosion it was discovered that the gas company's four inch main in Grand Avenue was broken. The gas company sought to persuade the jury, with its evidence, that the explosion was due to conditions within the building, conditions over which the owner of the building and not the gas company had control, as it successfully did in another tragedy arising out of the same explosion. McMurray v. Kansas City Gas Co., 353 Mo. 1180, 186 S.W.2d 593. It was and is the gas company's theory that the explosion came from pipes within the basement and that the explosion broke the four inch main. The gas company's evidence, if accepted by the jury, showed that the house gas pipes leaked, and that the gas and sewer pipes were improperly installed and maintained and that there was escaping sewer gas. It showed that the owner's tunnel beneath the basement floor was particularly hazardous because of the pipes within and the manner in which it was maintained.
We are quite clear that this proceeding is not authorized by statute, hence, neither the probate court nor the circuit [235] court had jurisdiction to entertain the so called cause except to dismiss it. It is elementary that if the circuit court had no jurisdiction to entertain the appeal, the supreme court does not, except to dismiss the appeal. See McMurray v. Kansas City Gas Co. et al., 353 Mo. 1180, 186 S.W.2d 593. Respondents' motion to dismiss the appeal should be sustained and the appeal dismissed. It is so ordered. Dalton and Van Osdol, CC., concur.
Both logic and common sense would seem to commend, if not dictate, our entry of the order of dismissal. The propriety of that disposition is indicated and supported by McMurray v. Kansas City Gas Co., 353 Mo. 1180, 186 S.W.2d 593(4), not overruled or criticized in any reported case. And in Coonis v. Rogers, Mo.App., 413 S.W.2d 310, where the amount in controversy was in excess of our jurisdictional limit, we dismissed a premature appeal from a judgment not final and appealable.
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 court 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.