Parlin & Orendorf Co. v. Hord

• Decision Date: 22 June 1898
• Citation: 46 S.W. 753,145 Mo. 117
• Parties: PARLIN & ORENDORF CO. v. HORD.
• Court: Missouri Supreme Court

46 S.W. 753

145 Mo. 117

PARLIN & ORENDORF CO. v. HORD.

Supreme Court of Missouri, Division No. 1.

June 22, 1898.

SUPREME COURT — JURISDICTION ON APPEAL.

1. Where the amount involved is not sufficient to confer jurisdiction on the supreme court, and the record does not show that any question involving the construction of the constitution was presented for the consideration of the trial court, or that any right guarantied thereby was denied the losing party, the supreme court has no jurisdiction, and the appeal will not be considered.

2. Where the record on appeal does not show that the judgment was based on the constitutionality of a statute, and that fact is shown only from the briefs of counsel, such question is not properly raised.

Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Action by Parlin & Orendorf Company against P. F. Hord, as assignee, etc. From a judgment in favor of defendant, plaintiff appeals. Cause transferred to the St. Louis court of appeals.

Geo. Robertson, for appellant. F. R. Jesse, W. H. Kennan, and W. W. Fry, for respondent.

MARSHALL, J.

This is an action of replevin, instituted in the circuit court of Audrain county, for the recovery of specific personal property of the value of $187.51. The petition is in the usual form. The answer denies the plaintiff's ownership of the property, the allegation of wrongful taking of possession by defendant, and asserts title and possession as assignee of one Ferris for the benefit of his creditors. The reply admits the assignment to defendant, and denies all other allegations of the answer. The case was tried by the court. No instructions were asked or given. The judgment was for the defendant for a return of the property, or, in default thereof, for $187.50. The bill of exceptions recites that, "the cause being submitted to the court, it was dismissed for want of jurisdiction, and judgment rendered accordingly for defendant." The motion for new trial was in the usual form, with the addition that the seventh ground was: "The court has jurisdiction of the cause." This motion being overruled, the plaintiff was allowed an appeal to this court.

With the record in this shape, it is claimed that a case involving the construction of the constitution of this state, within the meaning of section 12 of article 6 of the constitution of Missouri, is presented. This contention is based upon the claim that the act of March 19, 1891 (Acts 1891, p. 106), amending section 3318, c. 46, art. 3, Rev. St. Mo. 1889, is unconstitutional, because the title of that act is not such as is required by section 28 of article 4 of the constitution. The jurisdiction of any court over the subject-matter of the litigation is always open to question in every case, and, if apparent on the face of the record, may be raised for the first time in the appellate court. Henderson v. Henderson, 55 Mo. 534; Graves v. McHugh, 58 Mo. 499; Bray v. Marshall, 66 Mo. 122. But to give this court appellate jurisdiction, on the ground that the case involves the construction of the constitution of this state, the record must show that the point was raised in the trial court, and the protection of the constitution claimed by the losing party was denied him. Holland v. De Priest, 130 Mo. 89, 31 S. W. 928; Lang v. Callaway, 134 Mo. 491, 35 S. W. 1138; Hoyt v. Shelden, 1 Black, 518; Maxwell v. Newbold, 18 How. 511; Sayward v. Denny, 158 U. S. loc. cit. 184, 15 Sup. Ct. 777. In ...