Champlin Petroleum Co. v. Brashears

• Decision Date: 31 December 1979
• Docket Number: No. KCD,KCD
• Citation: 592 S.W.2d 545
• Parties: CHAMPLIN PETROLEUM COMPANY, Plaintiff-Respondent, v. Donald O. BRASHEARS, d/b/a Don Brashears Oil Company, Defendant-Appellant. 30223.
• Court: Missouri Court of Appeals

Page 545

592 S.W.2d 545

CHAMPLIN PETROLEUM COMPANY, Plaintiff-Respondent, v. Donald O. BRASHEARS, d/b/a Don Brashears Oil Company Defendant-Appellant.

No. KCD 30223.

Missouri Court of Appeals, Western District.

Dec. 31, 1979.

Ronald R. Holliger, Kansas City, for defendant-appellant.

Joseph J. Kelly, Jr., Jerome T. Wolf, Curtis E. Woods, Kansas City, for plaintiff-respondent.

Before WASSERSTROM, C. J., WELBORN, Special Judge, and HOUSER, Senior Judge.

WASSERSTROM, Chief Judge.

Defendant's appeal from a magistrate court judgment in an unlawful detainer action was dismissed in the circuit court for failure to file an appeal bond as required by Section 534.400, RSMo 1969. ¹ He now appeals to this court from that action by the circuit court.

Defendant leased three separate gasoline service stations from plaintiff under contracts, each of which provided for termination by either party upon specified written notice. Plaintiff gave notice to defendant of termination of each of the leases and demanded that defendant deliver possession. When defendant refused to so deliver, plaintiff commenced the present suit in three counts, one of which covered each of the different service stations.

Defendant agreed in the magistrate court that judgment might be entered by consent against him on the first count of the petition, and judgment was so entered on that count on January 20, 1978. The case with respect to the other two counts was then submitted to the magistrate court on a stipulated set of facts and the magistrate found in favor of plaintiff on both those counts. Judgment was entered on January 26, 1978, for possession of both premises, but with no assessment of damages. Plaintiff requested and obtained writs of execution on January 27, 1978, under which it has entered into possession.

On February 6, 1978, defendant filed in the magistrate court an appeal with bond, but the magistrate disapproved the bond on February 8, 1978. The transcript shows that defendant's appeal was then lodged in the circuit court without bond.

In the circuit court, plaintiff filed a motion to dismiss the appeal because of violation of Section 534.400. Thereafter, on April 11, 1978, defendant filed a motion to be permitted to file a new bond in the circuit court, but plaintiff filed a counter-motion on April 27 to disapprove the new bond so offered. On May 2, 1978, the circuit judge entered an order as follows: "The Motion of the Plaintiff to Dismiss Defendant's Appeal from the Judgment of the Magistrate is sustained. Accordingly, Defendant's Motion to Approve Appeal Bond and Plaintiff's Motion to Disapprove Appeal Bond are moot and no orders are made with reference thereto."

Defendant's sole point on this appeal contends that Section 534.400 is unconstitutional as a violation of equal protection of the law. As a prerequisite to a consideration of that point, it must appear that defendant raised that constitutional issue in the trial court at the earliest available opportunity. City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372 (banc 1949). The transcript on appeal filed by defendant does not so show. The only mention in that regard is a statement in the Notice of Appeal that defendant "attacked said statute, Section 534.400, as unconstitutional and a denial of equal protection under the law." Such a bald, unsupported statement interjected into the Notice of Appeal cannot be accepted as proof of the matter so asserted. See Broyles v. Broyles, 555 S.W.2d 696, 700(9) (Mo.App.1977).

However, under the authority of Rule 81.12(c), this court on its own initiative has reviewed the trial court file and finds that defendant did in fact raise the constitutional issue in timely fashion. His counsel filed suggestions in opposition to plaintiff's motion to dismiss the appeal from the Magistrate Court, and those suggestions argued the constitutional point at length. It is to be noted that plaintiff countered that argument equally elaborately by reply suggestions.

We observe that the trial court did not expressly rule on the constitutional issue. However, a ruling in favor of constitutionality of the statute is necessarily implicit in the court's order sustaining plaintiff's motion to dismiss the appeal. State ex rel. State Highway Commission v. Wiggins, 454 S.W.2d 899 (Mo.banc 1970).

Turning now to the constitutionality of Section 534.400, that section provides in relevant part as follows:

"No appeal shall be allowed in any case (of forcible or unlawful detainer) unless * * * sufficient recognizance be filed with the magistrate within ten days after the rendition of the judgment * * *. "

Defendant acknowledges that this statutory provision has been held to be jurisdictional and the appeal a nullity if no bond or an insufficient bond be filed. Pan American Realty Corp. v. Muroff, 456 S.W.2d 647 (Mo.App.1970). He contends, however, that this requirement is unconstitutional as a violation of equal protection guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 2, of the Missouri Constitution. In support of that contention, defendant cites Dixon v. Davis, 521 S.W.2d 442 (Mo.1975), which he says is "directly analogous to the case at bar."

Dixon was a rent and possession case brought under the provisions of Chapter 535. After an adverse judgment in the magistrate court, the defendant tenant filed an appeal but surrendered possession of the premises. The appeal was dismissed in the circuit court for failure to file an appeal bond as required by Section 535.110. The defendant tenant then further appealed to the Supreme Court on the ground that said statutory requirement was a denial of equal protection. The Supreme Court held that although a requirement for an appeal bond would be justified if the tenant had retained possession, that no longer remained true when the defendant tenant surrendered possession. Under the latter circumstances, Dixon holds the requirement for an appeal bond under Section 535.110 as a condition for appeal cannot be justified in contradistinction to the general right to appeal without bond granted under Sections 512.180 and 512.190.

Plaintiff seeks to distinguish Dixon on two general bases. In the first place it says that Dixon involved a different statute, built around different concepts from the one here in issue. Second, plaintiff contends that this case is factually different.

Before proceeding further with inquiry into the constitutional question framed by these opposing contentions, we must inquire into our jurisdiction to do so. Although both parties concur in the view that jurisdiction lies here, agreement of the parties cannot confer jurisdiction, and the court must examine that question sua sponte. MFA Mutual Ins. Co. v. Berry, 481 S.W.2d 513 (Mo.App.1972).

Article V, Section 3 of the Missouri Constitution, as it existed on the date of the Notice of Appeal herein, vested exclusive appellate jurisdiction in the Supreme Court in all cases "involving the construction of the Constitution of the United States or of this state." ² That phraseology has given rise to a substantial body of case law distinguishing between constitutional "construction" (as to which the Supreme Court has jurisdiction) and constitutional "application" (as to which the Court of Appeals has jurisdiction). No sharp line of demarcation was ever developed between these two concepts, and this has been a hazy area of the law. See, The Allocation of Original Appellate Jurisdiction in Missouri, Washington U.L.Q.1964, pp. 424, 443; Bubany, Constitutional Question Appellate Jurisdiction of the Missouri Supreme Court: The Albatross Hangs Heavy Still, 39 Mo.L.Rev. 299, 326 (1974).

However, the most recent decision by the Missouri Supreme Court on this subject lays down the rule governing the present situation. In State v. Higgins, 592 S.W.2d 151 (1979) the Supreme Court was presented a question as to the validity of the mandatory life sentence provision of Section 559.009, RSMo Supp.19...