Daniel & Henry Co. v. F. Bierman & Sons Metal & Rubber Co., 35485.

• Decision Date: 03 May 1938
• Docket Number: No. 35485.,35485.
• Citation: 116 S.W.2d 26
• Court: Missouri Supreme Court
• Parties: DANIEL & HENRY CO. v. F. BIERMAN & SONS METAL & RUBBER CO.

116 S.W.2d 26

DANIEL & HENRY CO. v. F. BIERMAN & SONS METAL & RUBBER CO.

No. 35485.

Supreme Court of Missouri, Division No. 2.

May 3, 1938.

Appeal from St. Louis Circuit Court; J. W. McAfee, Judge.

Action by the Daniel & Henry Company against F. Bierman & Sons Metal & Rubber Company, wherein defendant filed a counterclaim. From a judgment dismissing its appeal from an adverse judgment of a justice of the peace, defendant appeals.

Transferred to the St. Louis Court of Appeals.

A. B. Frey and Melvin L. Hertzman, both of St. Louis, for appellant.

Green, Henry & Green, of St. Louis, for respondent.

WESTHUES, Commissioner.

This cause originated in a justice of the peace court in the city of St. Louis, Mo. Respondent, plaintiff below, filed suit against appellant seeking to obtain a money judgment in the sum of $427.72. Appellant filed a general denial and a counterclaim wherein it asked judgment against respondent in the sum of $483.39. In the justice court a judgment was entered for respondent and against appellant in the sum of $427.72. Judgment was also entered against appellant on its counterclaim. Defendant, appellant here, duly appealed and filed an appeal bond which the justice court approved. When the case reached the circuit court, respondent filed a motion in which it asked the court to require appellant to file a new bond or dismiss the appeal.

Appellant conceded that pending the appeal the surety on the bond had become wholly insolvent and the bond was insufficient in that respect. Appellant, however, refused to give a new bond. It contended that the circuit court, in case of an appeal from the justice court, did not have authority or jurisdiction to require an appellant to give a new bond, even though the bond had, since the approval in the justice court, become insufficient because of the insolvency of the sureties on the bond. The circuit court thought otherwise and dismissed the appeal. Appellant appealed from that judgment. In the motion to set aside the dismissal appellant asserted that the judgment of the court deprived defendant of its right to have a trial of the issues, which was a denial of due process, contrary to article 2, section 30 of the Constitution of Missouri.

Appellant asserts that a constitutional question is involved and therefore this court has jurisdiction of this appeal. The mere effort, or attempt, to raise a constitutional question, when in fact no such question is involved in the case, does not vest this court with appellate jurisdiction. No such question is involved in this case. Appellant so states in his brief. Note the following statement: "The jurisdiction of the Circuit Court in cases of appeal from Justices of the Peace is not original but is purely derivative in its nature. ...