California Special Road Dist. v. Bueker
| Decision Date | 23 May 1921 |
| Docket Number | No. 13963.,13963. |
| Citation | 231 S.W. 71 |
| Parties | CALIFORNIA SPECIAL ROAD DIST. v. BUEKER. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Moniteau County; J. G. Slate, Judge.
"Not to be officially published."
Action by the California Special Road District against Louis Bucker. From a judgment for defendant, plaintiff appeals. Cause transferred to Supreme Court.
S. C. Gill and Embry & Embry, all of California, Mo., for appellant.
J. B. Gallagher, of California, Mo., and Irwin & Haley, of Jefferson City, for respondent.
Plaintiff, a special road district organized under the provisions of article 7, chapter 98, R. S. 1919, brought this action based on section 10720, R. S. 1919, for the statutory penalty of $5 per day, from and after ten days from the date defendant was notified to remove an obstruction which it is charged he willfully and knowingly maintained in a certain road and has refused to remove. Upon a trial, the jury returned a verdict for defendant, and the plaintiff has appealed. No briefs have been filed by respondent, save a manuscript brief in support of a motion to dismiss the appeal on the ground that appellant's brief does not comply with sections 1511 and 2421, R. S. 1919, and our rules 15, 16, and 17 (169 S. W. ix, x).
The reason for respondent filing no brief becomes apparent when, upon examining the record, it is seen that at the very outset defendant's answer invokes the constitutional provisions of sections 20 and 21 of article 2 of the Missouri Constitution, and of section 12 of article 2 of said Constitution, claiming that the section on which the action is based is a violation of said provisions and is not therefore enforceable.
The raising of these constitutional questions places the jurisdiction of this appeal in the Supreme Court. This court has no cognizance of constitutional questions, Bennitt v. Missouri Pac. Co., 44 Mo. App. 372, 374.
If the jurisdiction of the appeal is in the Supreme Court, of course that tribunal is also the proper one to pass upon the question of whether the appellant's brief is or is not vulnerable to the attack made upon it by respondent's motion to dismiss. Accordingly, the case is transferred to the Supreme Court.
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State ex rel. State Highway Commission v. McDowell
... ... v ... Kansas City Court of Appeals, supra; California Special ... Road Dist. v. Bueker, 231 S.W. 71; Ash v ... ...
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State ex rel. State Highway Comm. v. McDowell
...554; State ex rel. v. St. Louis Court of Appeals, 97 Mo. 276; State ex rel. v. Kansas City Court of Appeals, supra; California Special Road Dist. v. Bueker, 231 S.W. 71; Ash v. City of Independence, 145 Mo. 120; Bank v. Ridge, 79 Mo. App. 26. [2] Because, as pleaded by respondent in his ret......
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California Special Road Dist. v. Bueker
...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 HIGBEE, C. Plaintiff, a special road district, sued to recover the penalty of $5 per da......
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California Special Road Dist. v. Bueker
...was taken to this court, and upon the plea that a constitutional question was involved, the cause was transferred to the Supreme Court (231 S. W. 71), but that court found there was no constitutional question presented and sent it back to this court (248 S. W. 927), where the judgment was r......