Kircher v. Evers

• Decision Date: 14 March 1922
• Citation: 238 S.W. 1086
• Parties: KIRCHER v. EVERS et al.
• Court: Missouri Supreme Court

238 S.W. 1086

KIRCHER v. EVERS et al.

Supreme Court of Missouri, Division No. 1.

March 14, 1922.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

Snit by Frank Kircher against Casper Evers and others for injunction. From an adverse judgment, plaintiff appeals. Transferred to Court of Appeals.

E. R. McKee, of Memphis, O. C. Clay, of Canton, and B. L. Gridley, of Kahoka, for appellant.

W. L. Berkheimer and Charles Hiller, both of Kahoka, for respondents.

JAMES T. BLAIR, J.

This is an appeal from a judgment of the Circuit Court of Clark county denying an injunction which appellant sought against a school board in that county. The petition alleged that certain acts of the directors were in violation of section 11 of article 11 of the Constitution. The trial disclosed that the controversy did not arise, on this phase of the case, out of a difference of opinion as to what the section mentioned means, but did arise rather upon the question of fact whether the things said to be violative of that section had been done. The case went to judgment. The motion for new trial nowhere mentions any constitutional question. It refers to certain instructions which were asked, and predicates error upon their refusal, but instructions perform no office in a suit in equity, and error cannot arise out of or be predicated upon their refusal in such a case. A constitutional question, to give this court jurisdiction, must not only be such as to require a construction of some part of the Constitution, but it must be so preserved that the record in this court will present it for decision. Ross v. Grand Pants Co., 241 Mo. loc. cit. 299, 145 S. W. 410; Deming v. Springfield (Mo. Sup.) 217 S. W. loc. cit. 28. There were issues in the case which did not involve any constitutional question, and upon which the decree was really founded by the trial court. Appellant had the right to bring these issues alone into the appellate court. He had the right to abandon the constitutional question in the trial court if he saw fit, and address himself solely to the other issues. This he did by failing to keep the constitutional question alive, if one really existed, in his motion for new trial. This prevents a consideration of it on appeal, and thereby removes it as a ground of appellate jurisdiction. In circumstances like those in this case, and generally, constitutional questions are regarded as of more than usual dignity and importance, and they are not open to...