State ex rel. Lamm v. Mid-State Serum Co.

• Decision Date: 28 July 1924
• Docket Number: No. 24077.,24077.
• Citation: 264 S.W. 878
• Parties: STATE ex rel. LAMM, Pros. Atty., v. MID-STATE SERUM CO. et al.
• Court: Missouri Supreme Court

264 S.W. 878

STATE ex rel. LAMM, Pros. Atty., v. MID-STATE SERUM CO. et al.

No. 24077.

Supreme Court of Missouri. Division No. 2.

July 28, 1924.

Appeal from Circuit Court, Pettis County; John G. Slate, Judge.

Action by the State, at the relation of D. S. Lamm, prosecuting attorney of Pettis County, against the Mid-State Serum Company and another. Judgment for plaintiff; and defendants appeal. Case transferred.

W. D. O'Bannon, Mark A. McGruder, and Paul Barnett, all of Sedalia, for appellants.

Lamm & Lamm, of Sedalia, for respondent.

DAVID E. BLAIR, P. J.

This is an action in the name of the state of Missouri, at the relation of D. S. Lamm, prosecuting attorney of Pettis county, to enjoin the defendants from maintaining an alleged public nuisance in the city of Sedalia. From a final judgment granting a permanent injunction, defendants have appealed to this court.

We are confronted at the outset with the question of our appellate jurisdiction. No question of this sort has been raised by the parties, but it is our duty to determine that question for ourselves, although neither appellants nor respondent have challenged such jurisdiction. In re Letcher, 269 Mo. loc. cit. 147, 190 S. W. loc. cit. 21; In re Bennett's Estate v. Bennett (Mo. Sup.) 243 S. W. 769.

We have searched the record to determine if there exists any ground upon which our appellate jurisdiction may rest, and find none. The petition charged that defendants maintained a hog serum plant, and slaughter and packing house, and stock-feeding pens in a thickly populated residence section of the city of Sedalia, and, by reason of the conditions thereabout, the same constitute a common and public nuisance. The prayer of the petition was that defendants be enjoined from maintaining the same, etc. The answer was a general denial. The evidence was directed almost entirely to questions of fact presented by such pleadings. No constitutional question was sought to be raised in pleadings, objections to testimony, or in the motion for new trial.

The suit was filed in the name of the state, at the relation of the prosecuting attorney, but such fact furnishes no basis for our appellate jurisdiction. The only possible ground upon which such jurisdiction could be asserted is that the amount involved is sufficient. There is not a word of testimony in the record from which it can be said that the amount involved in the suit exceeds the sum of $7,500. The value of the hog serum plant does not appear,...