California Special Road Dist. v. Bueker
| Citation | 248 S.W. 927 |
| Decision Date | 23 February 1923 |
| Docket Number | No. 23182.,23182. |
| Parties | CALIFORNIA SPECIAL ROAD DIST. v. BUEKER. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Moniteau County; J. G. Slate, Judge.
Suit by the California Special Road District against Louis Bueker. Judgment for defendant, and plaintiff appeals. Cause remanded to the Kansas City Court of Appeals. See, also, 231 S. W. 71.
S. C. Gill and Embry & Embry, all of California, Mo., for appellant.
Plaintiff, a special road district, sued to recover the penalty of $5 per day for failure to remove certain obstructions placed by defendant in a public road within the plaintiff's district after 10 days' notice to remove the same, as provided by section 10533 (amended, section 10720, R. S. 1919). The defendant, by his answer, after denying all the allegations of the petition, pleaded that the statute authorizing plaintiff to recover penalties for the alleged obstructions contravened certain specified provisions of our Constitution, and objected to the admission of any evidence at the trial for that reason. The objection was overruled and under the instructions of the court the jury returned a verdict for the defendant on the issues of fact, and judgment was accordingly rendered for the defendant. Plaintiff moved for a new trial, which being overruled, an appeal was granted to the Kansas City Court of Appeals. That court (231 S. W. 71) transferred the cause to this court because of the constitutional question raised by the defendant's answer.
As previously stated, at the time the defendant objected to the offer of testimony, the court ruled in favor of the appellant. The constitutional question was not thereafter raised, either in the instructions given or refused, in the motion for new trial, or in appellant's brief. The respondent concluded to "let the Constitution shift for itself" and has filed no brief. The question was not kept alive, and was not in the case at the time the appeal was taken, and is therefore not presented by this appeal. Botts v. Wabash R. Co., 248 Mo. 56, 154 S. W. 53; Moore v. United Railways, 256 Mo. 165, 165 S. W. 304; Coombs v. Fuller (Mo. Sup.) 223 S. W. 741. It was eliminated in the trial court. Shell v. Mo. Pac. R. Co., 202 Mo. 339, 344, 100 S. W. 617; Jacobs v. St. Joseph, 204 Mo. 356, 102 S. W. 988. A different question was presented in Little River Drainage District v. Houck, 282 Mo. 458, 222 S. W. 385. In that case a constitutional question was properly...
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Baker v. Sovereign Camp, W. O. W.
...constitutional question there. Wabash Ry. Co. v. Flannigan, 117 S.W. 722; Parker-Washington Co. v. Field, 219 S.W. 598; California Road Dist. v. Bueker, 248 S.W. 927; Sutton v. Anderson, 31 S.W.2d 824; McGill v. Joseph, 31 S.W.2d 1038; Bankers Mtg. Co. v. Lessley, 31 S.W.2d 1055; Schildnech......
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Baker v. Sov. Camp, W.O.W., 36169.
...question there. Wabash Ry. Co. v. Flannigan, 117 S.W. 722; Parker-Washington Co. v. Field, 219 S.W. 598; California Road Dist. v. Bueker, 248 S.W. 927; Sutton v. Anderson, 31 S.W. (2d) 824; McGill v. St. Joseph, 31 S.W. (2d) 1038; Bankers Mtg. Co. v. Lessley, 31 S.W. (2d) 1055; Schildnecht ......
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...No.1 of St. Charles Cnty. v. West Alton Sch. Dist. No. 2 of St. Charles Cnty., 159 S.W.2d 676, 677 (Mo.1942); California Special Road Dist. v. Bueker, 248 S.W. 927, 927 (Mo.1923). See also State v. Brookshire, 325 S.W.2d 497, 500 (Mo.1959). To keep a constitutional question alive, it must b......
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