Opinion
No. 42670.
February 11, 1952.
Julius J. Selvaggi and Louis E. Zuckerman, St. Louis, for appellants.
Gragg Aubuchon and O. P. Owen, St. Louis, for respondent.
Appeal from a judgment entered upon a denial of defendants-appellants' joint special motion to set aside a judgment entered approximately six months prior to the filing of said motion.
On September 9, 1949, plaintiff-respondent filed a petition in the Circuit Court of the City of St. Louis seeking damages for personal injuries against appellants Center West Enterprises, Inc., a corporation, and Joseph Fiorito, d/b/a Old Homestead Bar. Summons was duly issued and proper service thereof obtained upon both defendants during September, 1949. Neither defendant filed any pleading but each was at all times thereafter in default.
On June 2, 1950, plaintiff filed her first amended petition against the same two appellants named in the original petition and joined as a new defendant Carl Fiorito. The petition recited that leave of court was obtained to file the amended petition and to join Carl Fiorito as a new party defendant. Summons was duly issued to the new defendant, Carl Fiorito, and proper service obtained upon him on June 6, 1950. No pleading was filed by him and he was at all times thereafter in default.
On August 17, 1950, the circuit court on motion of plaintiff ordered that the amended petition be taken as confessed against defendants and that an inquiry be had. On August 30, 1950, the cause was assigned to Division One, defendants remained in default, and a judgment for $3,000 and costs was entered against all defendants.
On February 1, 1951, the joint special motion of all defendants-appellants to set aside the judgment of August 30, 1950, was filed.
It is contended on this appeal by defendants-appellants Center West Enterprises, Inc., and Joseph Fiorito that the amended petition filed by plaintiff constituted a new or additional claim for relief against the two original defendants within the meaning of Mo.R.S. 1949, § 506.100, V.A.M.S. which provides in part: "1. Every pleading subsequent to the original petition, * * * shall be served upon each of the parties affected thereby, but no service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service (of) summons in this code."
It is contended on this appeal by defendant-appellant Carl Fiorito that he "was not ordered to be brought in by amendment of the original petition, or by a supplemental petition and a new summons", in accordance with Mo.R.S. 1949, § 507.030, V.A.M.S.
Jurisdiction of this court is invoked because appellants claim that constitutional questions are involved in that, appellants say, the judgment results in a violation of the Fourteenth Amendment to the Constitution of the United States and a violation of Art. I, Sec. 10 of the 1945 Constitution of Missouri, V.A.M.S.
It is apparent, however, that no constitutional questions are involved in this appeal. Indeed, counsel for appellants, both in their brief and in oral argument, concede that there are only two issues for determination; first, whether the first amended petition did state "new or additional claims," and secondarily, whether defendant-appellant Carl Fiorito was properly joined as a party defendant without an "actual, physical amendment of the Original Petition."
It appears too plain for extended discussion that one question involves simply a determination of whether, as a matter of fact, the first amended petition did state a new and additional claim against the original defendants, and that the other question is largely dependant upon a determination of the first question and involves at most only a construction of certain statutes and court rules.
There is no contention by defendants-appellants that any statute involved is unconstitutional. In brief, there is nothing involved in this appeal but to determine whether the trial court correctly construed a petition as to contents and character. Any error committed in such construction is properly correctible on appeal. The alleged erroneous construction of a petition or a statute does not raise a constitutional question. Thus, there is presented no constitutional question of being deprived of due process requiring or justifying an appeal to this court. Bealmer v. Hartford Fire Ins. Co., 281 Mo. 495, 504-505, 220 S.W. 954, 957[3,4]; Guillod v. Kansas City Power Light Co., 321 Mo. 586, 11 S.W.2d 1036; Van Emelen v. Van Emelen, Mo.Sup., 162 S.W.2d 272; Newman v. John Hancock Mut. Life Ins. Co., 316 Mo. 454, 290 S.W. 133.
The amount involved is not within the jurisdiction of this court. Under these circumstances, we must hold the courts of appeals have jurisdiction to determine all questions involved herein.
The cause is transferred to the St. Louis Court of Appeals.
VAN OSDOL and LOZIER, CC., concur
The foregoing opinion by COIL, C., is adopted as the opinion of the court.
All concur.