Baldwin v. Fries

• Citation: 103 Mo. 286,15 S.W. 760
• Parties: BALDWIN v. FRIES.
• Decision Date: 09 March 1891
• Court: United States State Supreme Court of Missouri

15 S.W. 760

103 Mo. 286

BALDWIN v. FRIES.

Supreme Court of Missouri, Division No. 1.

March 9, 1891.

SUPREME COURT — JURISDICTION — CONSTITUTIONAL QUESTION.

Where, in an action for slander, an appeal is taken to the supreme court from the Kansas City court of appeals, the supreme court has no jurisdiction, when the record fails to show that any constitutional question was raised or passed on by the trial court, and such question cannot be raised on appeal for the first time on the arguments of counsel.

Appeal from circuit court, Jasper county; M. G. McGREGOR, Judge.

Crow & Robinson and Harding & Buller, for appellant. J. R. Shields, for respondent.

BRACE, J.

This is an action for slander, tried in the circuit court of Jasper county, in which the plaintiff recovered a judgment for $575, from which the defendant took an appeal to the Kansas City court of appeals, and the case certified here by the latter court, as "involving the construction of provisions of the state constitution, as shown by the briefs of counsel." The slander charged in the petition was that the said defendant "did say of plaintiff, in the presence of divers and sundry persons, that he [meaning plaintiff] stole corn out of the pen of James McCall; he [meaning plaintiff] is a thief." The answer was a general denial. This court has no jurisdiction of this case, unless, upon the records, it fairly appears that a question is raised involving the construction of some provision of the constitution, state or national. It is not necessary that the particular provision of the constitution should be set out, but it must appear that the constitutional question was involved in the issues of the case, and that the trial court had an opportunity to and passed upon such question; it cannot be injected into the cause for the first time in the appellate court by argument or brief of counsel. Nall v. Railroad Co., 97 Mo. 68, 10 S. W. Rep. 610; State v. St. Louis Court of Appeals, 97 Mo. 276, 10 S. W. Rep. 874; Railway Co. v. Siefert, 41 Mo. App. 35. We find no such question raised or passed upon by the trial court, upon the face of the record in this case. The suggestion of the existence of such a question in the case can be based only upon the fact that counsel for appellant in their brief, in support of their argument upon propositions of law, cite in two instances a section of the constitution. The first instance is in their argument against the instructions given for the plaintiff, in which the court, in effect, instructed the jury that,...