Mesenbrink v. Boudreau

• Decision Date: 08 June 1943
• Docket Number: No. 26360.,26360.
• Citation: 171 S.W.2d 728
• Parties: MESENBRINK v. BOUDREAU et al.
• Court: Missouri Court of Appeals

171 S.W.2d 728

MESENBRINK v. BOUDREAU et al.

No. 26360.

St. Louis Court of Appeals. Missouri.

June 8, 1943.

Appeal from Circuit Court of City of St. Louis; Joseph J. Ward, Judge.

"Not to be reported in State Reports."

Suit before a justice of the peace by Augusta S. Mesenbrink against Staunton E. Boudreau and another for rent and restitution of the property, wherein named defendant filed general denial and counterclaim and the other defendant filed a general denial. The justice rendered a judgment for plaintiff against both defendants and for possession and costs and against named defendant on his offset and counterclaim, and defendants appealed to the Circuit Court. From a judgment of dismissal in the Circuit Court, defendants appeal.

Cause ordered transferred to the Supreme Court.

George O. Durham, of St. Louis, for appellants.

David E. Horn, of St. Louis, for respondent.

McCULLEN, Judge.

This suit was begun in a Justice of the Peace Court in the City of St. Louis by respondent, as plaintiff, against appellants, as defendants, to recover from defendants rent alleged to be due for the use of certain property and for restitution of the property.

Plaintiff's petition alleged that defendants rented and occupied as tenants the property which was described and alleged to be within the Justice's district; that defendants owed $140 as rent from March 1, 1942, to April 30, 1942; that the same was due and had been demanded but had not been paid.

Defendant Clara Boudreau filed a written answer generally denying plaintiff's allegations. Defendant Staunton E. Boudreau filed a general denial and a separate written defense or offset for abatement of the rent, and a separate written counterclaim arising out of the tenancy. The case was tried by the justice and he rendered a judgment in favor of plaintiff and against both defendants for the amount sued for, and for possession and costs. The justice also ruled against defendant Staunton E. Boudreau on his offset and counterclaim.

On May 4, 1942, defendants filed their joint affidavit for appeal to the Circuit Court of the City of St. Louis and their appeal bond with one E. Batt as surety. The appeal bond was on a printed form furnished by the justice, but did not contain a condition to pay rents to accrue and contained no condition against waste.

The justice approved the affidavit and bond on May 5, 1942, and, by an order duly made, allowed an appeal to the Circuit Court of the City of St. Louis, where, on May 11, 1942, he lodged the transcript and papers in the cause with the clerk of said court and paid the docket fee, and the appeal was docketed in said court.

On May 14, 1942, plaintiff filed in the Circuit Court a motion to dimiss the appeal, as follows: "Comes now the plaintiff-appellee and moves the Court to dismiss the appeal of the defendants-appellants herein for the reason that the appeal bond herein is defective in both form and substance, and does not comply with the requirements of Section 3002, R.S.Mo.1939, but is in direct violation thereof."

Said motion to dismiss the appeal was heard on May 20, 1942, by the judge sitting in Division No. 1 of said Circuit Court. Defendants-appellants contended at said hearing that the motion to dismiss did not specify the character of the alleged defect in the bond. It appeared, however, in the course of the hearing that the complaints against the bond were that it did not contain a condition to pay rents thereafter to accrue, and did not contain a condition against waste, as required by the statute, Section 3002, R.S.Mo.1939, Mo.R.S.A. § 3002, providing for appeals from a Justice Court in landlord and tenant cases. The court took the motion to dismiss as submitted, allowing the parties time to file briefs.

On May 23, 1942, three days after said hearing, while the motion to dismiss the appeal was still pending and undetermined, defendants-appellants filed in said cause in the Circuit Court an amended appeal bond with the same surety, which was exactly similar to the original bond except that the amount of the penalty thereof was in a larger sum, and it also contained the additional condition that if appellants should "satisfy such judgment, and all damages, costs and rent then due and to accrue, or if their appeal shall be dismissed and they shall pay the judgment of the justice, and all damages, costs and rent then due and to accrue, and compensate for all waste, if any committed by them, together with the costs of appeal," then the recognizance should be void.

Plaintiff-appellee did not file any motion against the second or amended bond, nor did she make any objection to its form or contents. According to the abstract of the record said bond still remains on file and was on file in the Circuit Court when, on July 28, 1942, the court sustained plaintiff-appellee's motion to dismiss the appeal, which had been directed against the original bond, and entered a judgment dismissing the appeal at the costs of defendants-appellants and their surety on the original bond, "for failure of defendants-appellants to furnish a good and sufficient appeal bond."

Within four days after said dismissal of the appeal defendants-appellants filed a motion to vacate said judgment of dismissal and for a rehearing, setting forth a number of grounds, among which was No. 8, claiming they had been denied constitutional rights, as follows: "By dismissing appellants' cause without a hearing, and refusing to exercise jurisdiction thereof, the Court denied to the appellants a hearing and due process of law and equal protection of the law contrary to the provisions and guaranties of the Constitution of Missouri, Article II, Section 30, and the Constitution of the United States, Amendment Fourteen, I."

The motion of defendants-appellants to vacate and for a rehearing was overruled, and an appeal was allowed them to this court.

Defendants-appellants, hereinafter referred to as appellants, have kept their constitutional objections alive by presenting to this court the point that the Circuit Court erred in dismissing their appeal and thereby denied them equal protection of the law and due process of law, contrary to the Fourteenth Amendment, Section 1, of the Constitution of the United States, and Article II, Section 30, of the Constitution of Missouri, Mo.R.S.A. We are, therefore, confronted with a question as to this court's jurisdiction to hear and determine the case.

It is clear that no constitutional question was involved in the pleadings in the case, so we need not discuss them. A constitutional question must be raised in the pleadings or at the first opportunity arising in the case, and must be kept alive, in order to give the Supreme Court appellate jurisdiction thereof. Woodling v. Westport Hotel Operating Co., 331 Mo. 812, 55 S.W.2d 477. However, it is also the law that a constitutional question may, in a proper case, be first raised in a motion for a new trial, although that rarely occurs. Woodling case, supra.

It appears from the record herein that appellants raised the constitutional question at their earliest opportunity, namely, in their motion to vacate and for a rehearing. It could not have been raised prior to the Circuit Court's judgment of dismissal because there was no denial of their alleged constitutional rights until that court refused them a trial de novo on the merits of the case by dismissing their appeal.

It has been held that in order to give to the Supreme Court jurisdiction in a cause, on the ground that a constitutional question is involved, it must appear that a constitutional right has been denied the losing party below. Ash v. City of Independence, 145 Mo. 120, 46 S.W. 749; Bankers' Mortgage Co. v. Lessley, Mo.Sup., 31 S.W.2d 1055.

In Brown v. Missouri, K. & T. R. Co., 175 Mo. 185, 74 S.W. 973, 974, the Court said: "But in order that the case can involve a constitutional question, the protection of the Constitution must be timely and properly invoked in the trial court, and that protection must have been denied to the party invoking it by that court, and such party must have been the losing party in the trial court, and proper exceptions saved to the ruling of the trial court."

In the case at bar appellants were the losing parties and, in that respect, come within the rulings in the last above cases.

The record in the case at bar also shows that appellants duly objected and excepted to the trial court's action in overruling their motion to vacate the judgment and for a rehearing.

Respondent contends that this court has jurisdiction to hear and determine the cause and that appellants' contention to the contrary is erroneous; that appellants, in order to raise a constitutional question herein, indulged in an unwarranted assumption that Section 2739 of Chapter 11, R.S. Mo.1939, Mo.R.S.A. § 2739, Chapter 11, would be read by the court into Section 3002 of Chapter 13, R.S.Mo.1939, Mo.R.S. A. §...