
    Cox, Appellant, v. Barker et al.
    Division One,
    June 14, 1899.
    Appeals: jurisdiction: trespass: title to real estate. Although the title to real estate may he incidentally, collaterally or necessarily inquired into for the purpose of settling the issues involved in an action of trespass, still if the judgment of the trial court can he satisfied hy the payment of money without affecting the title, the appeal therefrom is to the proper court of appeals.
    
      Transferred from St. Louis Court of Appeals.
    
    Remanded.
    Smoot, Mudd & WagNeb for appellant.
    The question of title in this action is not involved. Mc-Aninch v. Smith, 19-Mo. App. 240; Sage v. Tucker,’110 Mo. ' 407; Hampton v. Massey, 53 Mo. App. 501.
    JohN M. JayNE for respondents.
   MARSHALL, J.

This case was certified to this court by the St. Louis Court of Appeals on the ground that the title to real estate is involved. It is an action of trespass on land. The parties are- owners of adjoining parcels of land, and for many years maintained a partition fence. In 1884 the defendant removed a portion of the fence. The plaintiff replaced it bnt placed it a few feet further west of the line of the old fence. Defendant notified plaintiff that he was putting the fence on his, defendant’s, land, and that if a survey proved this to be true he would hold the fence. A subsequent survey proved defendant’s claim was correct, and he thereupon tore the fence down and carried away the materials. Plaintiff then instituted this action, claiming twenty-five dollars for the materials and fifty dollars damages for the trespass. The trial court found for the defendant, and plaintiff appealed to the St. Louis Court of Appeals. The Court of Appeals held that as the liability of the defendant depended upon the ownership of the land, and as “it was competent for defendant to show in defense of the action a superior title and right of possession in themselves [Fuhr v. Dean, 26 Mo. 116; More v. Perry, 61 Mo. 174],” the title to real estate was involved, and hence this court alone had jurisdiction, and therefore certified the case here.

I.

In Price v. Blankenship, 144 Mo. 203, this court reviewed the question here involved and held that although the title to real estate may be incidentally, collaterally, or necessarily inquired into in a trial for the purpose of settling the issues involved, still if the judgment rendered by the trial court could be satisfied by the payment of money without affecting the title to the real estate, the case would not fall within our jurisdiction under section 12 of Article YI of the Constitution. It was further held that to give this court jurisdiction for this reason, “the judgment to be rendered must directly affect the title itself to the real estate.”

This decision was rendered after this case had been certified to this court, or we may properly assume this ease would not have been sent here.

In determining the question of trespass here complained of, it may be conceded that an inquiry into the title may be necessary, but the title itself will not be affected by any judgment that could be rendered in this case. Therefore the case does not involve the title to real estate and does not come within the jurisdiction of this court. Hence the case will be retransferred to the St. Louis Court of Appeals.

All concur.  