Browning v. Powers

• Decision Date: 18 January 1898
• Citation: 44 S.W. 224,142 Mo. 322
• Parties: BROWNING v. POWERS.
• Court: Missouri Supreme Court

44 S.W. 224

142 Mo. 322

BROWNING v. POWERS.

Supreme Court of Missouri, Division No. 1.

January 18, 1898.

CONSTITUTIONAL LAW — VALIDITY OF STATUTE — ARREST OF JUDGMENT.

The constitutionality of an act of the general assembly fixing the time for holding one of the terms of the circuit court cannot be questioned, after verdict, in an action at law pending therein, by a motion in arrest of judgment.

Appeal from circuit court, Dekalb county.

Action by Lena Browning against Patrick Powers, administrator of the estate of E. W. Powers, deceased. From an order overruling defendant's motion in arrest of judgment, he appeals. On motion of plaintiff, transferred to the Kansas City court of appeals.

S. G. Loring, for appellant. Casteel & Haynes and Harwood & Hubbell, for respondent.

MACFARLANE, J.

This action, for slander, was tried in the circuit court of Dekalb county at the June term, 1893, in accordance with an act of the general assembly of the state fixing the first Monday in June as the time for holding one of the terms of said court in said county. After a trial, and verdict in favor of plaintiff for $650, defendant filed a motion in arrest of the judgment; charging as grounds therefor that said act was not passed in accordance with the forms required by the constitution of the state, and was therefore unconstitutional. In support of the motion, defendant offered in evidence the journals of the senate and house of representatives. The motion was overruled by the court, and defendant appealed. Plaintiff files in this court a motion to transfer the appeal to the Kansas City court of appeals. Defendant asserts the jurisdiction of this court on the ground that the constitutionality of the act in question is involved. The question is whether or not the constitutionality of the act could be brought in question, after verdict, by a motion in arrest of judgment.

The appellate jurisdiction of the supreme court contemplates a review only of the matters submitted to, and examined and determined by, the trial court. Hence it is well settled that this court has no jurisdiction of an appeal, on the ground that a constitutional question is involved, unless the question was raised in, and submitted to, the trial court. The supreme court has attempted to lay down no rule as to the manner of raising such question, but it is said "it should, at least, be fairly and directly presented by some of the methods recognized by the practice and procedure of the courts."...