ON MOTION FOR REHEARING. The motion for rehearing, by respondents, is directed very largely to the separate concurring opinion, therefore these observations. No serious argument was made at the hearing in Court en Banc (nor at any other time) on the merits of the decreenisi, and none can be made. The promised argument (en Banc), upon the merits, consisted solely of reading to the court an excerpt from the decree nisi, and this excerpt from the decree was prepared bodily from the petition in the case, and not from the evidence, so far as the ice plant involved in this cause is concerned. Thrice have we read the entire record in this case, and viewed every photograph therein, and we reiterate that the decree nisi is without support in the record evidence as to the new and up-to-date plant involved in this case. But the opinion of SEDDON, C., fully cares for this matter, and we go to the things urged in the present motion for rehearing. We shall be brief, but pointed. *Page 382
1. Respondents are exceedingly solicitous about our overruling (as they think) cases heretofore written on the question of meritless constitutional questions as urged in behalf of our jurisdiction. They cite six cases, as follows: Brookline Canning Co. v. Evans, 238 Mo. 599; Botts v. Railway Co., 248 Mo. 56, l.c. 61; Segall v. Pigment Co., 263 Mo. 719; Bealmer v. Ins. Co.,281 Mo. 495, l.c. 505; McManus v. Burrows, 217 S.W. 512; State v. Tatam, 278 S.W. l.c. 714 and 715.
Respondents seem to fear that this court will be flooded with cases wherein colorless and meritless constitutional questions are charged to give jurisdiction here, if the ruling in the concurring opinion is permitted to stand. All the cases supra go to meritless and colorless constitutional questions to foist appellate jurisdiction upon this court. No member of this court has written more strongly upon this question than the writer hereof in Carson v. M.K. T. Ry. Co., 184 S.W. l.c. 1041, whereat we said: "There must at least be some substance to the constitutional question before it possesses the vitality to force jurisdiction here." This statement of ours was quoted approvingly by GOODE, J., in McManus v. Burrows, 217 S.W. l.c. 514, cited by respondents, supra. Nothing in the concurring opinion contravenes either of the cases cited, supra. What we said in the concurring opinion was, in effect, upholding the rule announced in each and all of the several cases, supra. We said that the question was not lodged in the usual way, but that plaintiffs had put the question (whether substantial or colorless), into the case, and had induced the trial court, over the denial of the defendant, to find that there was a taking of the property of the plaintiffs without due process of law, and all in violation of named sections of both State and Federal constitutions. When this court affirms the decree of a trial court it affirms all the findingsand adjudications in such decree. In this case, we repeat, this court cannot affirm the decree herein without saying that the alleged acts of the defendant violated the constitutional rights of the plaintiffs (as in the petition stated), and this finding in the decree was over the denial of the defendant, and from such ruling the defendant appealed. If we affirm this decree, we affirm all that is said therein, and if the constitutional questions are without substance, this court declares them to have substance, as the trial court did when it entered such decree. In plain terms this court cannot affirm the decree nisi without saying that there are not only constitutional questions involved, but that they are of substance. When this court affirms this judgment, if it ever does, it says what the trial court found and decreed in the decree nisi. The trial court found that there were substantial constitutional questions. Our ruling in the concurring opinion is in full harmony with every opinion cited in the motion for rehearing, and set out, supra. Nor can plaintiffs urge surprise in that this part of the decree is commented upon *Page 383 in the opinion. It is a part of the decree, lodged there by the action of the plaintiffs, and upon appeal they must expect to have to uphold, and be prepared to uphold, each finding in such decree. In the situation plaintiffs should be the last ones to suggest the meritlessness of the constitutional question. They are estopped by the fact that they pleaded it, and induced the trial court to write it in the decree.
2. Next it is urged that we can only consider the relief granted to one of the divers plaintiffs involved herein. Even if this were true the jurisdiction would be in this court. In the separate concurring opinion we made only the very lowest minimum estimates of the relief granted in money value of such relief. To illustrate we took lots on Obear Avenue, at the minimum of twenty-five feet frontage, when all the facts indicated them to be fifty-foot lots, just as they are in the city block whereon the ice plant has been erected. If the law is, as lately contended (en Banc) by respondents (which we do not concede), yet Aufderheide, by his own record admissions, has shown that his damage, and consequently his relief, was far in excess of $7500. In the petition he says that the building and maintenance of this ice plant, "will greatly and unreasonably destroy . . . the market value of the property of these plaintiffs," and he was one of them. Further on Aufderheide (in the petition) admits that he and the other plaintiffs would, by reason of the named conditions, be forced to "abandon their homes, or become ill and sick therefrom." Homes that have to be abandoned are worthless. We are entitled to use these written admissions, and we therefore have Aufderheide's property of over two hundred feet practically destroyed, when he himself had asked $150 per front foot for property just across the street, and had actually been offered $125 per front foot for it. This was mere vacant property. Aufderheide's property is highly improved. This court could well say that Aufderheide alone received relief, by the decree, according to his admissions of record, of very much more than the jurisdictional amount. By one witness it is shown that vacant lots across from the saw-mill (in the same block as the ice plant) were reduced to $20 per foot by reason of the hum of the saw-mill. This vacant property for which Aufderheide was offered $125 per front foot, and asked $150, was in the same immediate vicinity. So if we have to be guided by the relief, estimated in money, of only one plaintiff (which we do not concede), Aufderheide has shown in his record admissions, and by the evidence, that he alone has received much more than $7500 relief by the decree.
3. In contending that the sum total of the relief granted by the decree to all the plaintiffs cannot be considered as the jurisdictional amount, we are cited to 3 Corpus Juris, paragraph 209, page 411, *Page 384 and to Ogden City v. Armstrong, 168 U.S. 224. Respondents overlook 3 Corpus Juris, paragraph 215, page 415, of the same volume, whereat it is said:
"Where several plaintiffs seek one judgment for the enforcement of their several demands, such demands being founded upon the same liability, the aggregate amount is held to furnish the criterion of appellate jurisdiction in their behalf, and defendant may appeal, notwithstanding the interest of each plaintiff in the judgment would not be of sufficient amount to confer jurisdiction. And where the amount decreed against appellant consists of several sums in favor of various appellees, no one of which sums would come within the jurisdictional amount, but the aggregate of which amount is in excess of the jurisdictional limit, it is held that defendant may appeal."
Respondents overlook the further fact that their citation of paragraph 209, page 411, of 3 Corpus Juris, is a statement of a rule announced very largely by the Federal courts, and not by Missouri courts, and courts of other states wherein there is a Code of Procedure, rather than the Federal rules of court in equity cases. Respondents could have added that the Federal courts have permitted the jurisdictional amount to be shown by affidavits (filed after judgment in lower court), as to the money value of the relief granted in the equity proceeding below. In other words they do not always take the facts of the recordnisi, as conclusive of jurisdiction, but permit supplemental affidavits, a thing the courts of this State condemn. [State ex rel. v. Reynolds, 256 Mo. 710, and the cases reviewed therein.] Our Practice Act is left clear out of consideration by respondents, as is also its effects on the judgment appealed from in the present case. Our Practice Act provides for the consolidation of cases, and if the judgment after consolidation, suffices for jurisdiction, this court has it and will take it. [State ex rel. v. Fraser, 165 Mo. l.c. 256 — opinion by BURGESS, J., concurred in by GANTT and SHERWOOD, JJ.] Neither of the suits, in the Fraser case (afterward consolidated under the Practice Act), was for sufficient amount to place jurisdiction in this court, but we retained jurisdiction in the case. The cases were separate causes of action. Respondents overlook the further fact, that under our code, and the practice generally, one or more plaintiffs, may sue for themselves, and others similarly situated. Such was done in this case. The petition was not demurrable on any ground, in our judgment, and but one judgment could be entered, which covered all plaintiffs. Further had the forty-three parties in interest in this case brought separate suits to enjoin the building and operation of this ice plant, under our Practice Act they could have been consolidated, and one single judgment entered for the relief prayed. Under the case of State ex rel. v. Fraser, supra, the aggregate sum of the consolidated actions would determine the *Page 385 jurisdiction. Don't forget that there is a difference betweenrules under State practice acts, and mere court rules in Federalequitable cases.
Further evidencing the Missouri rule are the cases of Priest v. Deaver, 21 Mo. App. 209, and, Washington Savings Bank v. Butchers Drover's Bank, 61 Mo. App. 449, both of which cases, and the rulings therein, are cited with approval by this court in Bradley v. Ins. Co., 147 Mo. l.c. 638. In the Priest case, supra, the plaintiff had judgment entered for more than the jurisdictional amount, but no defendant was liable for more than $1204.85, and their several separate adjudicated judgments against them ranged from $267.75 to the $1204.85. No defendant had been adjudged to pay the jurisdictional sum of $2500, yet they were permitted to add up all of them. The Court of Appeals ruled that the appeal of the defendants was in the Supreme Court, and as said this court spoke approvingly of such disposition of that case by the Court of Appeals in the Bradley case, supra. To like effect is the case in 61 Mo. App., supra. Our rule, which we set out fully in the concurring opinion, accords with our Practice Act, and the rulings thereunder. Under it the interests of all these plaintiffs must be considered, and as the parties had the right to sue, as they did, and as under the code but one judgment could be rendered in their favor, the full relief granted by such judgment must be estimated in money, in determining the amount in dispute, for the purpose of fixing jurisdiction.
4. But aside from all this the amount involved upon defendant's side of the case is sufficient. Had we the Federal rule, as announced in some of their cases, of receiving affidavits after the judgment nisi to show the amount in dispute in these equity cases, where no money judgment is sought, the damage to this defendant by virtue of this decree, written up from the petition, rather than from the evidence touching the particular plant involved in this particular case, would be appalling. Plaintiff sued without bond, and after the decree nisi, it was modified so as to allow the completion of those walls to protect themachinery, evidently installed therein. The cooling system and its machinery had to be built in as the walls were built. But this is not all, there was a supersedeas granted, thus giving to defendant the full legal right to complete, in full, the plant, and even to operate it, until this court spoke to the contrary. As yet it has not so spoken. This court has jurisdiction beyond a question of a doubt, and the Commissioner is amply sustained on the merits of the case. The motion for rehearing should be overruled. Blair, Atwood and Gantt, JJ., concur; White. J., concurs in all except what is said about the constitutional question; Walker, C.J., and Ragland, J., dissent. *Page 386