City of Louisiana v. Lang

• Decision Date: 28 June 1913
• Citation: 158 S.W. 1
• Parties: CITY OF LOUISIANA v. LANG.
• Court: Missouri Supreme Court

158 S.W. 1

CITY OF LOUISIANA v. LANG.

Supreme Court of Missouri, Division No. 1.

June 28, 1913.

1. APPEAL AND ERROR (§ 928)—PRESUMPTION —DEFECTIVE RECORD.

Where the instructions given are not in the record and were not excepted to, they are presumed to have covered the case, so that error in refusing other instructions cannot be reviewed and affords no basis for retaining jurisdiction.

2. COURTS (§ 231)—SUPREME COURT—JURISDICTION.

A city is not a political subdivision of the state, in the constitutional sense so as to confer jurisdiction on the Supreme Court of a case in which it is a party.

Appeal from Louisiana Court of Common Pleas. D. H. Eby, Judge.

W. K. Lang was convicted of violating a city ordinance prohibiting itinerant merchants from selling goods without a license, and he appeals. Case transferred to the St. Louis Court of Appeals.

D. A. Ball, of Louisiana, Mo., for appellant. James E. Pew, of Louisiana, Mo., for respondent.

BLAIR, C.

A jury in the Louisiana court of common pleas assessed a penalty of $50 against defendant for violating an ordinance of the city of Louisiana, which prohibits itinerant merchants from plying their vocation in that city without license. On the trial there was evidence tending to support the complaint. The evidence conflicted on the question whether defendant received his supplies from Chicago or St. Louis.

This court has no jurisdiction of this case. The demurrer to the complaint and the objection to the reception of any evidence were both put upon the simple ground that the complaint "stated no cause of action." Neither these nor the demurrers to the evidence, offered at the close of the plaintiff's evidence and at the close of all the evidence, raised any constitutional or federal question. Lohmeyer v. Cordage Co., 214 Mo. 685, 113 S. W. 1108. There is not in the record any reference, direct or indirect, to either the state or federal Constitution or any federal statute or question whatsoever. No claim of any right under any or either of these, as far as the record shows, was set up in the trial court at any time or in any fashion.

The argument here seems to assume that a question sufficient to confer jurisdiction on this court was involved in the ruling refusing instructions asked as follows:

"The court instructs the jury that if they believe from the evidence in the cause that the defendant, W. K. Lang, was selling goods, wares, and merchandise, such as coffee, teas, etc., as has been given in evidence, and that the same were shipped from Chicago to the defendant and by him sold and distributed, then your verdict should be for the defendant."

"The court instructs the jury that if you believe from the evidence in the cause that the goods, wares, and merchandise, such as coffee, teas, etc., as sold by defendant, W. K. Lang, were from a house in Chicago, and that said Chicago house, Jewell Tea & Coffee Company, had a distributing point in St. Louis and Hannibal, one or both, and from there the goods were reshipped to defendant at the distributing point, or shipped from the distributing point to the defendant at the city of Louisiana, then your verdict should be for the defendant."

After showing the ruling on these proffered instructions, the record states that "under the instructions of the court the jury returned" their verdict, wherein they assessed defendant's punishment at a fine of...