The State ex rel. Lancashire Insurance Company v. Rombauer
| Decision Date | 15 June 1897 |
| Citation | 40 S.W. 763,140 Mo. 121 |
| Parties | The State ex rel. Lancashire Insurance Company v. Rombauer et al |
| Court | Missouri Supreme Court |
Writ denied.
Elijah Robinson for relator.
(1) The question of jurisdiction was settled by the record of the trial court, and what was done subsequent to the time the order was made by that court granting an appeal is entirely immaterial. Baldwin v. Fries, 103 Mo. 286; Bennett v. Railroad, 105 Mo. 644. (2) The question as to which court has jurisdiction depends on whether a question involving the construction of the Constitution was raised in and presented to the trial court, and by said court passed on, and not on whether it was called to the attention of the court of appeals. Bennett v. Railroad, 105 Mo. 644; Baldwin v. Fries, 103 Mo. 286. (3) When a court has no jurisdiction of the subject-matter of a suit the parties thereto can not confer jurisdiction by any act or conduct of theirs in the trial of the case -- not even by consent. (4) The only questions this court has to deal with are whether this court has exclusive jurisdiction of said case, and whether the said St. Louis Court of Appeals has refused to send it here.
FROM SUGGESTIONS MADE BY RESPONDENTS.
(1) No constitutional question has been properly raised in said cause either in the trial court or in the St. Louis Court of Appeals. Baldwin v. Fries, 103 Mo. 287; Bennett v. Railroad, 105 Mo. 644. (2) The Louisiana court of common pleas being a court de facto, the question whether it is a court de jure can not, according to elementary rules, be raised in proceedings pending before it, or in any other court acquiring its jurisdiction by changes of venue from that court. (3) Neither of the respondents is of the opinion that the decision rendered in said cause was contrary to any previous decision either of the Kansas City Court of Appeals or of the Supreme Court, as appears by the last opinion of the St. Louis Court of Appeals filed herein. Hence upon the uniform construction put upon that section both by your honorable court and all appellate courts of this State, the undersigned had no jurisdiction so to certify said cause nor has your honorable court the constitutional power to require such certification. State ex rel. v. Philips, 96 Mo 570; State ex rel. v. Smith, 107 Mo. 527.
OPINION
In Banc.
Mandamus.
Relator asks for a writ of mandamus against respondents, as judges of the St. Louis Court of Appeals, to require them to transfer to the Supreme Court a case of Charles P. Fink against relator, pending before said court of appeals, on appeal from the Pike county circuit court. The writ is demanded on two grounds: First, because the decision of said court of appeals is in conflict with certain decisions of the Kansas City Court of Appeals; and, second, because the construction of the Constitution of the State of Missouri is involved in the case. Respondents waived the issuance of an alternative writ, and made return to the petition, the substance of which is a denial of the right to a peremptory writ of mandamus.
The case was submitted upon an agreed statement of facts to the effect that on the fourth of March, 1893, Charles P. Fink commenced a suit against relator, in the Louisiana court of common pleas. A summons was issued and served. At the May term of said court, 1893, on the application of the defendant, the venue was changed to Ralls county; and afterward, also on application of defendant, the venue was again changed to the circuit court of Pike county. Defendant answered, and the cause was tried in the Pike circuit court, at the December term, 1893, and resulted in a judgment for plaintiff, from which defendant appealed to the St. Louis Court of Appeals wherein the judgment was reversed and the cause remanded for a retrial.
On the eighteenth of July, 1895, defendant (relator in this court) filed a motion to abate the suit on the ground that "the Louisiana court of common pleas had not at the time of the institution of this suit, any legal existence, the said court having been abolished by the provisions of the Constitution of this State, which was adopted on the thirtieth day of October, 1875, and went into effect on the thirtieth day of November, 1875." This motion was overruled, and defendant duly excepted.
Defendant thereupon refiled its answer, the cause was tried again in said circuit court, and resulted in a verdict and judgment for plaintiff for...
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