Harding v. City of Carthage

• Decision Date: 09 January 1903
• Parties: HARDING et al. v. CITY OF CARTHAGE.
• Court: Missouri Supreme Court

71 S.W. 673

171 Mo. 442

HARDING et al. v. CITY OF CARTHAGE.

Supreme Court of Missouri, Division No. 2.

January 9, 1903.

APPEAL—JURISDICTION OF SUPREME COURT— CONSTITUTIONAL QUESTION.

1. Where plaintiff's petition sought to enjoin certain threatened acts of a city on the ground that they were unconstitutional, but the suit was dismissed before hearing on the ground of plaintiff's failure to prosecute, an appeal from such dismissal would not lie to the supreme court on the ground that a constitutional question was involved, such question not having been raised and submitted.

Appeal from circuit court, Jasper county; Jos. D. Perkins, Judge.

Suit by H. H. Harding and another against the city of Carthage. From a judgment overruling a motion to set aside an order of dismissal, plaintiffs appeal. Case transferred to the Kansas City court of appeals.

Howard Gray and Thomas & Hackney, for appellants. McReynolds & Halliburton and H. J. Green, for respondent.

BURGESS, J.

This suit was begun in the circuit court of Jasper county to enjoin defendant city from holding an election for the purpose of establishing and maintaining an electric light plant in said city. The petition was filed in the office of the clerk of the circuit court of said county on December 23, 1898, while the December term of said court was in session, and summons sued out for defendant on the same day, returnable to the June term, 1899, of said court, although a regular March term intervened. The summons was served on the 24th day of December, 1898. On January 3, 1899, defendant entered its appearance in said cause, filed its answer, and, after having notified plaintiff thereof, filed its motion asking the court that the cause be set down for hearing during the December term of said court, which was then in session. The motion was sustained, and the cause set for hearing on February 6, 1899. On February 4, 1899, plaintiffs filed their motion to set aside said order, which motion was by the court overruled. On February 6, 1899, when said cause came on for hearing, plaintiffs failed to appear, and the cause was dismissed for failure of plaintiffs to prosecute. In due time plaintiffs filed motion to set aside said order of dismissal, which being overruled they saved their exceptions, and appealed the case to the Kansas City court of appeals. That court transferred the case to the supreme court because of the want of jurisdiction to hear the same, there being a constitutional question...