Kansas City Masonic Temple Co. v. Young

Citation166 S.W. 838,179 Mo. App. 278
Decision Date04 May 1914
Docket NumberNo. 10,976.,10,976.
PartiesKANSAS CITY MASONIC TEMPLE CO. et al. v. YOUNG et al.
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Jackson County; Jos. A. Guthrie, Judge.

Action by the Kansas City Masonic Temple Company and others against Alfred E. Young and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

A. S. Marley, of Kansas City, for appellants. Jamison, Hutchison & Ostergard, of Kansas City, for respondents.

TRIMBLE, J.

This is an appeal from a decree making permanent a temporary injunction theretofore granted. No motion for new trial nor in arrest of judgment was filed. The appeal was taken without them. In such case, while the appeal can be thus taken, there is nothing before us but the record proper. Newton v. St. Louis & San Francisco Railroad Co., 168 Mo. App. 199, 153 S. W. 495; R. S. Mo. 1909, §§ 2040, 2041, and 2083. The office of a motion in arrest is to call the court's attention to error patent of record; and such error must be intrinsic to, and not dehors, the record; and the error must be one of substance and not of form. The most to be said of a motion in arrest is that, if one be not filed and passed upon by the trial court, an appellate court will not consider matter of error to which the trial court's attention could only be called by a motion in arrest. Stid v. Railroad, 211 Mo. 411, loc. cit. 415, 109 S. W. 663. However, as section 2083, R. S. Mo. 1909, requires us to examine the record, we must do so; but unless the petition is wholly insufficient to support any judgment of the nature rendered, or unless the judgment is outside of or not based upon the issues raised by the pleadings, we are not authorized to disturb it, however irregular it may be, in view of the fact that the attention of the trial court was in no way called to such irregularities or errors of form, and no opportunity was given said court to correct them. For fatal error apparent on the face of the record, such as that the court has no jurisdiction of the cause or parties, or that the petition fails to state a cause of action, the court will reverse, but not for mere defects and irregularities. McIntire v. McIntire, 80 Mo. 470, loc. cit. 473. The Supreme Court has refused to reverse for errors of misjoinder of parties and causes of action. Ames v. Gilmore, 59 Mo. 537. Proceeding then to the question of whether the record discloses errors fatal to the judgment, we find none. The court clearly had jurisdiction of the subject-matter and of the parties. Consequently, unless the petition wholly failed to state any cause of action, or unless the judgment is entirely outside of, and not based upon, nor authorized by, the pleadings, the decree must stand.

The amended petition on which ...

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