Kansas City Masonic Temple Company v. Young
| Decision Date | 04 May 1914 |
| Citation | 166 S.W. 838,179 Mo.App. 278 |
| Parties | KANSAS CITY MASONIC TEMPLE COMPANY, et al., Respondents, v. ALFRED E. YOUNG, et. al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Jos. A. Guthrie, Judge.
AFFIRMED.
Judgment affirmed.
A. S Marley for appellants.
Jamison Hutchinson & Ostergard for respondents.
This is an appeal from a decree making permanent a temporary injunction theretofore granted. No motion for new trial nor in arrest of judgment was filed. The appeal was taken without them. In such case, while the appeal can be thus taken, there is nothing before us but the record proper. [Newton v St. Louis and San Francisco Railroad Co., 168 Mo.App. 199, 153 S.W. 495; R. S. Mo. 1909, Secs. 2040, 2041 and 2083.] The office of a motion in arrest is to call the court's attention to error patent of record; and such error must be intrinsic to, and not dehors, the record; and the error must be one of substance and not of form. The most to be said of a motion in arrest is that if one be not filed and passed upon by the trial court, an appellate court will not consider matter of error to which the trial court's attention could only be called by a motion in arrest. [Stid v. Railroad, 211 Mo. 411, l. c. 415.] However, as section 2083, Revised Statutes 1909 requires us to examine the record, we must do so, but unless the petition is wholly insufficient to support any judgment of the nature rendered, or unless the judgment is outside of or not based upon the issues raised by the pleadings, we are not authorized to disturb it, however irregular it may be, in view of the fact that the attention of the trial court was in no way called to such irregularities or errors of form, and no opportunity was given said court to correct them. For fatal error apparent on the face of the record, such as that the court has no jurisdiction of the cause or parties, or that the petition fails to state a cause of action, the court will reverse, but not for mere defects and irregularities. [McIntire v. McIntire, 80 Mo. 470, l. c. 473.] The Supreme Court has refused to reverse for errors of misjoinder of parties and causes of action. [Ames v. Gilmore, 59 Mo. 537.] Proceeding then to the question of whether the record discloses errors fatal to the judgment, we find none. The court clearly had jurisdiction of the subject-matter and of the parties. Consequently, unless the petition wholly failed to state any cause of action or unless the judgment is entirely outside of, and not based upon, nor authorized by, the pleadings, the decree must stand.
The amended petition on which the case was tried alleged that the Kansas City Masonic Temple Company was erecting a building of $ 150,000 in value, wherein the various Masonic Lodges in Kansas City, and the members thereof, might hold meetings that the personal plaintiffs are members of such lodges and as such are interested in the Kansas City Masonic Temple Company; that when said structure is completed it is to be dedicated at some date in the near future not yet known; that defendants as managers and owners of the Masonic World Publishing Company are about to issue a publication immediately prior to and at the time of the dedication of said temple and thereafter, purporting to be an official publication authorized by said Temple Company and to be sold and distributed as a souvenir of the occasion of such dedication, containing a picture of said Temple with a description thereof and portraits and biographical sketches of the officials and other leading Masons throughout the State; that defendants were soliciting subscriptions to said publication from various members of the Masonic orders and representing to them that defendants were authorized by the Temple Company to do so; and that defendants had agreed to contribute one-half of the proceeds to the furnishing of said Temple, all of which was untrue. That said Temple Company not only had not given defendants such authority but had refused to give it; that said defendants' propose to put in said publication sundry advertisements, all without the authority, supervision, or control of plaintiffs or any of them, to the injury of plaintiffs and their business and property rights particularly of the said Temple Company; that other members and persons were being induced to subscribe and pay money to defendants by representations that the Temple would get one-half of their subscriptions; that not only are plaintiffs' property rights being infringed upon but the issue and publishing of such publication with the pictures and biographies proposed to be published in connection with the promiscuous advertising, would tend to injure and bring into contempt and ridicule plaintiffs and each of them; that they were without adequate remedy at law and would suffer irreparable injury if said publication be permitted to issue. Wherefore an injunction was prayed to stop the solicitation of subscriptions and the representations that the publication was by the consent or under...
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