Pruellage v. De Seaton Corp.

Citation380 S.W.2d 403
Decision Date13 July 1964
Docket NumberNo. 2,No. 50333,50333,2
PartiesBertha PRUELLAGE, Administratrix of the Estate of John Pruellage, Deceased, Respondent, v. The DE SEATON CORPORATION, a corporation, Thirty-Five Seventeen Company, Inc., a Corporation, Ramos, Inc., a Corporation, George Ogilvy, Michael Ogilvy and A. C. Vyver, Defendants, George Ogilvy, Appellant
CourtUnited States State Supreme Court of Missouri

Thompson, Mitchell, Douglas & Neill, Joseph P. Logan, H. Meads Summers, Jr., and Fred E. Arnold, St. Louis, for respondent.

Schwartz, Schwartz & Gilden, St. Louis, for appellant.

STOCKARD, Commissioner.

George Ogilvy has appealed from the order of the trial court reviving a judgment which had previously been entered against him. The total amount of the judgment with accrued interest thereon is $8,931.72. It is thus apparent that this court does not have appellate jurisdiction of this appeal by reason of the amount in dispute. Therefore, we must determine whether we have jurisdiction for some other reason.

Briefly stated, the facts are as follows: The original judgment was obtained against George Ogilvy and others on August 12, 1952. Thereafter Ogilvy was discharged in bankruptcy and the judgment was listed in the schedule of debts in the bankruptcy proceeding. On August 10, 1962, respondent filed her motion for a writ of scire facias to revive the judgment, which motion was sustained and the writ issued. Ogilvy answered thereto and alleged that (1) he was 'not indebted to the judgment debtor or the purported assignee thereof;' (2) the obligation 'has been paid;' and (3) he had been 'adjudicated a bankrupt' and had 'received a discharge in bankruptcy.' After a hearing the trial court entered its order reviving the judgment as prayed.

Appellant asserts in the jurisdictional statement in his brief that this court has jurisdiction because 'among the points relied on by appellant here, and in the court below, are these: That the judgment against appellant ignores and fails to give due legal effect to said bankruptcy discharge of appellant from said judgment indebtedness and so violates and contravenes the provisions of Article I, Section 8, Clause 4, of the Constitution of the United States under which the Congress of the United States is empowered to establish uniform laws on the subject of bankruptcies throughout the United States; and, further, that the judgment of the trial court for the same reason also violates Article VI, Clause 2, of the Constitution of the United States under which it is provided that the Constitution of the United States and the laws of the United States 'which shall be made in Pursuance thereof * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, [etc.]'

We need not rule whether the above statements, if made in a point relied on, would be sufficient to present for determination on this appeal constitutional questions within the meaning of Article V, Section 3, Constitution of Missouri, V.A.M.S. See, however, the discussion and rulings in State ex rel. Doniphan Telephone Company v. Public Service Commission, Mo., 369 S.W.2d 572, and State ex rel. Missouri-Kansas-Texas Railroad Company v. Public Service Commission, Mo., 378 S.W.2d 459. In any event appellant did not timely present a constitutional question to the trial court. In his answer filed to the writ of scire facias he made no mention whatever of any constitutional question or issue. It has long been the rule that for a constitutional question to be preserved for appellate review it must have...

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65 cases
  • Rigby Corp. v. Boatmen's Bank and Trust Co., WD
    • United States
    • Court of Appeal of Missouri (US)
    • June 24, 1986
    ...The matter alleged in Counts IV and VI, must be deemed to have been abandoned on appeal. Pruellage v. DeSeaton Corporation, 380 S.W.2d 403, 405[3, 4] (Mo.1964); School Dist., etc. v. Transamerica Ins. Co., 633 S.W.2d 238, 253 (Mo.App.1982), and cases cited. It would be a disservice to and u......
  • In re Van Orden, SC 89224.
    • United States
    • United States State Supreme Court of Missouri
    • December 16, 2008
    ...the issues presented before a court for review simply by discussing issues within the body of the argument. Pruellage v. De Seaton Corp., 380 S.W.2d 403, 405 (Mo. banc 1964). The appellants sought review of the constitutionality of the clear and convincing standard 271 S.W.3d 589 of proof f......
  • Empire Gas Corp. v. UPG, Inc., s. 16096
    • United States
    • Court of Appeal of Missouri (US)
    • October 27, 1989
    ...not there presented will be considered abandoned on appeal and no longer an issue in the case." Pruellage v. De Seaton Corporation, 380 S.W.2d 403, 405 (Mo.1964). To similar effect see Conway v. Judd, 723 S.W.2d 905, 906 (Mo.App.1987); Smith v. Welch, 611 S.W.2d 398, 399 (Mo.App.1981). Furt......
  • Montgomery v. Travelers Protective Ass'n of America, 8781
    • United States
    • Court of Appeal of Missouri (US)
    • October 17, 1968
    ...having stated them under 'Points Relied On' are not preserved or presented for appellate review. Pruellage v. De Seaton Corporation, Mo., 380 S.W.2d 403, 405(3, The concluding phrase of the first point relied on, supra, pertains to the leave granted plaintiff immediately before trial to ame......
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