Opinion
No. 43577.
November 9, 1953.
APPEAL FROM THE CIRCUIT COURT OF STONE COUNTY.
J. William Cook, Crane, for appellant.
Rufe Scott, Galena, for respondent.
This is an action in ejectment for the possession of real estate in Stone County, Missouri. Plaintiff, alleging ownership, seeks possession, $100 damages and $1 a month rent. Defendant answered denying the allegations of plaintiff's petition, alleging ownership, and asked to be discharged with his costs. Neither party sought an adjudication of title. The judgment was that plaintiff take nothing and that defendant be discharged with his costs. It did not adjudge title in plaintiff or defendant.
Plaintiff, upon his appeal, says we have jurisdiction because title to real estate is involved. No authority is cited. Ejectment is a possessory action. Under our rulings title to real estate is only incidentally or collaterally involved in the instant case and appellate jurisdiction is in the Court of Appeals. The Court of Appeals may properly inquire into the matter of title when incidentally involved as the basis of a claim to possession. Ballenger v. Windes, 338 Mo. 1039, 93 S.W.2d 882, 883[2-4]; Gibbany v. Walker, 342 Mo. 156, 113 S.W.2d 792; State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174, 176 [1-3]; Hinkle v. Wood, Mo., 155 S.W.2d 191; Motchar v. Hollingsworth, Mo., 162 S.W.2d 805, 807 [2-5]; 17 Mo.L.R. 103.
The cause is transferred to the Springfield Court of Appeals.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.