Meadowbrook Country Club v. Davis

Decision Date14 December 1964
Docket NumberNo. 50436,No. 2,50436,2
Citation384 S.W.2d 611
PartiesMEADOWBROOK COUNTRY CLUB, Respondent, v. Sam DAVIS, Appellant
CourtMissouri Supreme Court

Cupples, Cooper & Haller, by Irving L. Cooper, Clayton, for respondent, Meadowbrook Country Club.

John Grossman, St. Louis, for defendant (appellant).

PRITCHARD, Commissioner.

Appellant was sued by respondent in Magistrate Court upon an account for dues and assessments alleged to be owed respondent. From a judgment against him dated September 28, 1962, appellant perfected an appeal to the Circuit Court. The notice of appeal to the Circuit Court was filed October 6, 1962, and the transcript of this appeal was lodged in the Circuit Court on October 11, 1962. Trial to the court without a jury on May 27, 1963, resulted in a judgment against appellant for $784.90, plus interest and costs. Appellant seeks to present to this court a constitutional question (raised for the first time on the day of trial) that the application of the below-mentioned Rule 3K of the Circuit Court of St. Louis County infringed his right to a jury trial. Said Rule 3K provides that any party desiring a jury trial of an appeal from Magistrate Court or Municipal Court shall file a written request therefor, and deposit $15.00 with the circuit clerk within 30 days after the filing of the transcript on appeal. Failure to do so shall be a waiver of a trial by jury and the case shall be assigned to the jury waived docket. On December 5, 1962, there was an entry on the Circuit Court minutes, 'Pursuant to Court Rule 3K, jury trial waived. Cause assigned to Assignment Division.' On March 26, 1963, the court entered the following order: 'Deft-Appellant and Pltff-Appellee, having failed to request a trial by jury within 30 days after the filing of the transcript on appeal, (Rule 3K, Rules of Court), the jury trial is waived in the above cause; the above cause is hereby assigned to Division No. 1 for trial.'

On April 11, 1963, a $50.00 deposit with the circuit clerk was made by appellant, who also filed a written request and memorandum, 'Defendant requests jury trial; cause removed from Docket of April 29th and placed on jury trial docket.' The request and proffered memorandum (suggested court order for jury trial) were denied by the court on the following day. The trial began on May 27, 1963, and appellant orally renewed his request for a jury trial, which was again denied, the court stating that he had already ruled the request on the basis of Rule 3K. Immediately after the oral request was denied, appellant excepted to the ruling of the court, if it was made under the authority of said Rule 3K, and suggested (for the first time) that the rule deprived him of the right for jury trial without due process of law.

Our jurisdiction depends upon whether a constitutional question was properly preserved by appellant, and essentially the inquiry is whether appellant has timely interposed the objection that the Rule 3K is violative of Art. I, Sec. 22(a) of the 1945 Missouri Constitution, V.A.M.S., providing 'That the right of trial by jury as heretofore enjoyed shall remain inviolate: * * *.' It is firmly established that a constitutional question must be presented at the earliest possible moment 'that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived.' Securities Acceptance Corporation v. Hill, Mo., 326 S.W.2d 65, 66, and other cases there cited.

Appellant and his counsel participated in the initial proceedings in the Magistrate Court. After judgment against him there he perfected his appeal to the Circuit Court. Appellant was bound to know the existence of the court Rule 3K requiring a written request for a jury trial, else it would be deemed waived by the express terms of the rule. See 21 C.J.S. Courts, Sec....

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37 cases
  • Callier v. Director of Revenue, State of Mo.
    • United States
    • Missouri Supreme Court
    • December 12, 1989
    ...and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived." Meadowbrook Country Club v. Davis, 384 S.W.2d 611, 612 (Mo.1964), quoting Securities Acceptance Corp. v. Hill, 326 S.W.2d 65, 66 A party asserting the unconstitutionality of a statute o......
  • State v. Thompson, 62446
    • United States
    • Missouri Supreme Court
    • February 9, 1982
    ...on this ground. A constitutional question must be raised at the earliest possible moment, otherwise it is waived. Meadowbrook Country Club v. Davis, 384 S.W.2d 611 (Mo.1964). Appeal lies only from a final judgment. Section 512.020, RSMo 1978; Wilson v. Hungate, 434 S.W.2d 580 (Mo.1968). The......
  • Willits v. Peabody Coal Co.
    • United States
    • Missouri Court of Appeals
    • June 25, 2013
    ...and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived.” Meadowbrook Country Club v. Davis, 384 S.W.2d 611, 612 (Mo.1964) (internal quotation omitted) (emphasis added). This rule has been posited by the Supreme Court of Missouri as necessary ......
  • Thompson v. City of St. Peters
    • United States
    • U.S. District Court — Eastern District of Missouri
    • October 24, 2016
    ...and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived.’ " Meadowbrook Country Club v. Davis , 384 S.W.2d 611, 612 (Mo. 1964) (quoting Secs. Acceptance Corp. v. Hill , 326 S.W.2d 65, 66 (Mo. 1959) ). " ‘The critical question in determining wh......
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