Sublette v. St. Louis, Iron Mountain & Southern Railway Company

• Decision Date: 30 June 1906
• Citation: 95 S.W. 430,198 Mo. 190
• Parties: SUBLETTE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

95 S.W. 430

198 Mo. 190

SUBLETTE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Division One

June 30, 1906

Appeal from St. Louis County Circuit Court. -- Hon. John W McElhinney, Judge.

Transfered to st. louis court of appeals.

Geo. S Grover for appellant.

D. C Taylor and R. H. Stevens for respondent.

OPINION

GRAVES, J.

This is the second time this case, or some phase of it, has broken through the portals and gotten into this court. It first came from Adair county and was by this court certified to the Kansas City Court of Appeals. It has been in the Courts of Appeals, and received consideration and opinions three other times. [66 Mo.App. 331; 81 Mo.App. 327; 96 Mo.App. 113.] The litigants have been absolutely fair with the two Courts of Appeals, having been to each of them twice, and having been to this court but once, the same spirit of fairness perhaps prompted them in this second attempt here, under the guise of alleged constitutional and federal questions.

The petition is one declaring upon a judgment of a justice of the peace for $ 125, and accrued interest at the rate of 6 per cent from 1883. The answer is of great length, but outside of the part which we will presently set out, is presented fully by Barclay, J., 96 Mo.App. 113, and repetition here is useless.

After the opinion of Judge Barclay, affirming the judgment of the circuit court, in setting aside its finding and judgment for defendant, the defendant before a second trial, which resulted in the present appeal, amended its answer by adding another count thereto, which is the part thereof raising the alleged constitutional and federal questions.

This part of the answer is as follows:

"Further answering, defendant says that this cause was tried before Hon. John W. McElhinney, circuit judge of the Thirteenth Judicial Circuit, at Clayton, Missouri, on the 15th day of June, 1901; that thereafter, on the 15th day of July, A. D 1901, a judgment for the defendant was ordered in said court, and thereafter on the 27th day of July, 1901, the plaintiff's motion for new trial was sustained by said court; whereupon defendant perfected an appeal in said cause to the St. Louis Court of Appeals, where, subsequently, the judgment below in sustaining said motion for new trial was affirmed.

"Defendant further states that the opinion of the St. Louis Court of Appeals at the last trial of this cause, affirming said judgment for new trial, is in direct conflict with the opinion of the Kansas City Court of Appeals, found in the 81st Missouri Appeals, on page 327, as hereinbefore recited and with numerous controlling decisions of the Supreme Court of Missouri, and that the construction of the various statutes of the State of Missouri, bearing upon this case, as given by the St. Louis Court of Appeals, violates section 30, of article 2, of the Constitution of Missouri, in that it attempts to deprive the defendant of property without due process of law, and also violates the fourteenth amendment to the Constitution of the United States, in that said...