Kansas City ex rel. Barlow v. Robinson

• Decision Date: 25 May 1929
• Citation: 32 S.W.2d 1075,322 Mo. 1050
• Parties: KANSAS CITY ex rel. BARLOW v. ROBINSON
• Court: Missouri Supreme Court

32 S.W.2d 1075

322 Mo. 1050

KANSAS CITY ex rel. BARLOW v. ROBINSON

Supreme Court of Missouri

May 25, 1929

Majority Opinion Reported at 322 Mo. 1050, 17 S.W.2d 977.

In Banc.

OPINION

WALKER, J.

(dissenting). One of the essentials to the jurisdiction of the Supreme Court upon an appeal in any case is that the ground therefor must appear in the record and be preserved in such a manner as to show that it has not been abandoned. Thus asserted and preserved, the right to a review is established.

In the instant case, the constitutionality of the ordinance in question was the sole basis of jurisdiction. While properly made and persisted in throughout the trial, it is not mentioned directly or inferentially in the motion for a new trial. In its absence therefrom we are without jurisdiction and on this ground the writer dissented from the report of Commissioner Davis, which a majority of the court subsequently adopted as its opinion in the case.

In addition to a general familiarity with our procedure, both under the statute and the rules of court, I have supplemented that knowledge with a careful review of the cases in which the question of jurisdiction has been mooted and determined and I find no instance in which jurisdiction has been asserted and maintained in which the sole ground for the same, however strenuously persisted in during the trial, has not been preserved in the motion for a new trial. Our most recent affirmative declaration of this rule appears in Macon County Levee Dist. v. Goodson, 14 S.W.2d 561. Other late cases are Keena v. Keena (Mo. Sup.) 3 S.W.2d 352; Morgan v. Willman, 318 Mo. 151, 1 S.W.2d 193, 197, 58 A. L. R. 1518; City of Ferguson v. Steffen et ux. (Mo. App.) 300 S.W. 1039, 1041.

The rule under consideration is, however, so firmly established in our procedure and has heretofore been so uniformly enforced that a further discussion of the same seems unnecessary. It is enough therefore, to say that whether a failure to observe the rule is due to inadvertence or a willful disregard of its binding force, we have nevertheless no jurisdiction in this case, and it should be so held.

Equally elementary rules and as binding upon the limitation of our powers are, first, that parties to a suit cannot confer jurisdiction by consent (Toothaker v Pleasant, 315 Mo. 1239, 288 S.W. 38); and, second, that it is the duty of the Supreme Court, within the defined limits of its power, to...