Klingelhoefer v. Smith

VALLIANT, J. This is an application for a writ of prohibition to be directed against the judges of the Kansas City Court of Appeals on the alleged ground that they have assumed appellate jurisdiction of a case in which title to real estate is involved. For the purposes of this application the following is a sufficient statement of the facts: The petitioners, Elizabeth Klingelhoefer et al., in December, 1897, brought a suit in equity against Margaret Ziemendorf, their mother, alleging that she had purchased certain real estate in the city of St. Joseph with their money and had taken the title in her own name, and praying that she be divested of the title and that the same be vested in them. A decree was rendered in accordance with that prayer. In May, 1898, one Rieschick obtained judgment in the Buchanan Circuit Court for $525.01 against Margaret Ziemendorf, and in April, 1899, he filed a suit in equity against her and her daughters, the petitioners ir this proceeding, the plaintiffs in the case just mentioned, alleging that he had loaned the money on which his judgment was founded, to Margaret Ziemendorf, on the [461] faith of her ownership of the land mentioned; that she had bought the land and improved it with her own money; that her daughters knew that she took the title in her own name and obtained the loan from him on the credit of the land; that their suit against her was to defraud him by taking the title out of her and leaving nothing with which to' satisfy his judgment. The prayer was that the mother be reinvested^ with the title in so far as to render the land subject to the judgment. The finding of the court was that the land was bought and improved with moneys belonging to the mother and the daughters, without specifying proportions, and that the daughters had knowingly permitted the title to be taken in the mother’s name and the credit thereby given her on which the loan was obtained from the plaintiff in that suit, and the decree was that, as to that plaintiff, the title was in the mother and the land subject to the plaintiff’s judgment, which was declared to be a lien on it, and it was decreed to be sold to satisfy the same. From- that judgment the daughters prayed an appeal which was granted, but.the order granting the appeal did not specify the court to which it was to go. The appellants caused the record to be lodged in the Kansas City Court of Appeals, where they filed assignments of error, and where the cause was regularly heard on its merits, and a judgment affirming the judgment of the circuit court. Then the appellants filed a motion in that court to transfer the cause to this court, assigning as the ground for the motion that title to real estate was involved. The court overruled the motion and the mandate affirming the judgment went to the circuit court. After that those appellants filed this petition for a writ of prohibition. I. The point is made in the briefs for respondents that appellants, by voluntarily carrying the record to the Kansas City Court of Appeals, assigning errors, filing briefs and submitting to judgment therein, are estopped to deny the jurisdiction of the court. But that point can not be sustained. If title to real estate was involved in the suit, the Court of Appeals did not [462] have jurisdiction of it, and no act of the parties, either by agreement or estoppel, could confer jurisdiction. It is therefore of no significance, in its effect on the judgment of the Court of Appeals, that the appellants lodged the record in that court, and submitted the cause for its judgment. If the Court of Appeals had no jurisdiction in the case, its judgment is a nullity, and the judgment of the circuit court is not affected thereby. II. The record shows that the Court of Appeals had concluded whatever it had to do with the case, had rendered final judgment, overruled the motion to transfer to this court, sent its mandate to the circuit court and adjourned the term before this application for a writ of prohibition was made. That court was not therefore doing or indicating an intention to do, anything in the matter; the case was no longer in the court. A writ of prohibition will have the effect to undo what has already been done in a case where the court against which the writ goes has begun to take action, but has not finished. But when the court has exhausted its force, rendered its final judgment and nothing is left undone, there is nothing to prohibit. [High on Ex. Legal Rem., sec. 766; State ex rel. v. St. Louis Court of Appeals, 97 Mo. 276.] It is not stated in the petition that the Court of Appeals is doing or is about to do anything to enforce its judgment. On the contrary, that court has nothing to do with enforcing the judgment; it merely affirmed, the judgment of the circuit court, which latter is the only court that can enforce it. A judgment of affirmance is self-executing; it operates only on the judgment of the trial court. Petitioners are not entitled to a writ of prohibition. III. But in addition to the prayer for a writ of prohibition, is also a prayer for an order on the Court of Appeals to transfer the cause to this court. If that court liad no jurisdiction of the subject it should have sustained the motion to transfer the cause to this court, and having failed to do so, it would devolve on this court to make an order requiring the transfer. We are thus led to a consideration of the question, was title to [463] real estate involved in the suit? There is no donbt bnt that in the first suit mentioned, wherein these petitioners sued their mother to have a resulting trust in the land declared in their favor, title to real estate was involved, but in the suit in which this appeal was taken to the Kansas City Court of Appeals there was no title to real estate involved. The gist of the petition in the case and of the decree was that those daughters had knowingly and approvingly allowed the title to be taken in their mother’s name, and thereby had given her a credit on the faith of which the plaintiff had loaned the money which was the foundation of the judgment, and the prayer of the petition was that as to him the title should be deemed to be in the mother, and the land subjected to the payment of plaintiff’s judgment. And that was the decree. The title as between mother and daughters was not sought to be disturbed, but because they had misled the plaintiff to his disadvantage by their behavior, the decree was that their land should be charged with the debt. The title to real estate was not involved in the case and the Kansas City Court of Appeals had jurisdiction. [State ex rel. v. Court of Appeals, 67 Mo. 199; Baier v. Berberich, 77 Mo. 413; Syenite Granite Co. v. Bobb, 97 Mo. 46; Carrigan v. Morris, 97 Mo. 174; Bailey v. Winn, 101 Mo. 649; Price v. Blankenship, 144 Mo. 203; Vandergrif v. Brock, 158 Mo. 681; Bruner Granitoid Co. v. Klein, 170 Mo. 225.] Under the circumstances of this case the petitioners are not entitled to the writ of prohibition nor to an order to transfer the cause to this court. All concur.