Wabash R. Co. v. Flannigan

CourtMissouri Supreme Court
Writing for the CourtValliant
Citation218 Mo. 566,117 S.W. 722
Decision Date31 March 1909
PartiesWABASH R. CO. v. FLANNIGAN et al.
117 S.W. 722
218 Mo. 566
WABASH R. CO.
v.
FLANNIGAN et al.
Supreme Court of Missouri, Division No. 1.
March 31, 1909.

1. COURTS (§ 231)—JURISDICTION—CONSTITUTIONAL QUESTIONS.

Where a litigated point cannot be decided without construing a particular clause in the Constitution, a constitutional question is involved, and, whether raised or not in the trial court, the appeal must come to the Supreme Court.

2. COURTS (§ 231)—JURISDICTION.

Whether, in a case where an injunction is only an incident to the main subject of the litigation, the party enjoined is, on a motion to assess damages on the injunction bond, entitled to recover his attorney's fees for defending the suit, or whether he actually employed an attorney, are not constitutional questions of which the Supreme Court has jurisdiction.

3. APPEAL AND ERROR (§ 300)—CONSTITUTIONAL OBJECTIONS—TIME OF MAKING.

Where the opportunity to invoke a particular constitutional clause does not arise until the trial is under way, or as in the case of an instruction given, even when the trial is ended, the point is timely though not presented in the pleadings, and where such a question arose for the first time on motion after final judgment, it was timely when presented in motions for new trial and in arrest.

4. CONSTITUTIONAL LAW (§ 46)—CONSTITUTIONAL QUESTIONS—SPECIFIC OBJECTION.

In order to raise a constitutional question, the party complaining must point to the particular section of the Constitution on which he relies, it being insufficient to say in general terms that the act complained of violates the Constitution.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Action by the Wabash Railroad Company

[117 S.W. 723]

against Alexander Flannigan and another. From the judgment, plaintiff appeals. Transferred from the St. Louis Court of Appeals. Cause returned to said court.

For prior report, see 118 Mo. App. 124, 100 S. W. 661.

Geo. S. Grover and J. L. Minnis, for appellant. Jno. D. Johnson, W. H. Biggs, and Virgil Rule, for respondents.

VALLIANT, J.


This cause was transferred to this court from the St. Louis Court of Appeals on the idea that a constitutional question is involved, but after going through the record we are satisfied that there is really no such question in the case.

The controversy arose in a motion to assess damages on an injunction bond after the injunction had been dissolved. The facts were as follows: One Tourville was an employé of the Wabash Railroad Company, and the company owed him $81.98. Flannigan brought suit against Tourville before a justice of the peace in East St. Louis, St. Clair county, Ill., and obtained judgment against him, and also a judgment against the Wabash Railroad Company, as garnishee of Tourville, for $81.98, the amount the company owed him. Then Tourville sued the Wabash Railroad before a justice of the peace in the city of St. Louis for the same debt, and obtained judgment for that amount, and assigned the judgment to Virgil Rule. Then the Wabash filed in the circuit court of the city of St. Louis a bill of interpleader against Flannigan and Rule praying to be allowed to pay the money into court and let those two interplead for it; praying also an injunction to restrain Rule from levying the execution which he had sued out. The preliminary injunction was issued, the Wabash Company giving an injunction bond for $1,000. That suit was contested, and the end of it was that the injunction was dissolved and the bill dismissed. Then came the motion to assess damages on the injunction bond, on the hearing of which the court assessed in favor of Rule $200 as for his liability for attorney's fees incurred in that litigation. The case seems to have turned in the circuit court on the question of fact whether any attorney's fees were paid or...

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12 practice notes
  • Aufderheide v. Polar Wave Ice & Fuel Co., No. 25825.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...v. Meramec Highlands Co., 160 Mo. 111; Burns v. Ins. Co., 295 Mo. 680; McManus v. Burrows, 280 Mo. 327; Wabash Railroad Co. v. Flanagan, 218 Mo. 566. (8) To give this court jurisdiction on constitutional grounds there must be a decision adverse to appellant, and no such decision was made by......
  • State ex Inf. McKittrick v. Williams, No. 36718.
    • United States
    • United States State Supreme Court of Missouri
    • November 9, 1940
    ...v. Cordage Co., 113 S.W. 1108, 214 Mo. 690; Schildnecht v. Joplin, 327 Mo. 126, 35 S.W. (2d) 36; Wabash Railroad Co. v. Flannigan, 218 Mo. 566; First Natl. Bank v. Foster, 271 S.W. 536. (5) The respondent was not entitled to a trial by jury. State ex rel. Ewing v. Townsley, 56 Mo. 107; Youn......
  • Baker v. Sov. Camp, W.O.W., No. 36169.
    • United States
    • United States State Supreme Court of Missouri
    • March 8, 1939
    ...in the Kansas City Court of Appeals on other grounds and without raising the constitutional question there. Wabash Ry. Co. v. Flannigan, 117 S.W. 722; Parker-Washington Co. v. Field, 219 S.W. 598; California Road Dist. v. Bueker, 248 S.W. 927; Sutton v. Anderson, 31 S.W. (2d) 824; McGill v.......
  • McGrath v. Meyers, No. 34421.
    • United States
    • United States State Supreme Court of Missouri
    • June 30, 1937
    ...v. St. Louis Cordage Co., 214 Mo. 685, 113 S.W. 1108; Hartzler v. Met. St. Ry. Co., 218 Mo. 562, 117 S.W. 1124; Railroad v. Flannigan, 218 Mo. 566; Kristanik v. Chevrolet Motor Co., 70 S.W. (2d) 892; Butler v. Board of Education, 16 S.W. (2d) 44; Woodling v. Westport Hotel Op. Co., 331 Mo. ......
  • Request a trial to view additional results
12 cases
  • Aufderheide v. Polar Wave Ice & Fuel Co., No. 25825.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...v. Meramec Highlands Co., 160 Mo. 111; Burns v. Ins. Co., 295 Mo. 680; McManus v. Burrows, 280 Mo. 327; Wabash Railroad Co. v. Flanagan, 218 Mo. 566. (8) To give this court jurisdiction on constitutional grounds there must be a decision adverse to appellant, and no such decision was made by......
  • State ex Inf. McKittrick v. Williams, No. 36718.
    • United States
    • United States State Supreme Court of Missouri
    • November 9, 1940
    ...v. Cordage Co., 113 S.W. 1108, 214 Mo. 690; Schildnecht v. Joplin, 327 Mo. 126, 35 S.W. (2d) 36; Wabash Railroad Co. v. Flannigan, 218 Mo. 566; First Natl. Bank v. Foster, 271 S.W. 536. (5) The respondent was not entitled to a trial by jury. State ex rel. Ewing v. Townsley, 56 Mo. 107; Youn......
  • Baker v. Sov. Camp, W.O.W., No. 36169.
    • United States
    • United States State Supreme Court of Missouri
    • March 8, 1939
    ...in the Kansas City Court of Appeals on other grounds and without raising the constitutional question there. Wabash Ry. Co. v. Flannigan, 117 S.W. 722; Parker-Washington Co. v. Field, 219 S.W. 598; California Road Dist. v. Bueker, 248 S.W. 927; Sutton v. Anderson, 31 S.W. (2d) 824; McGill v.......
  • McGrath v. Meyers, No. 34421.
    • United States
    • United States State Supreme Court of Missouri
    • June 30, 1937
    ...v. St. Louis Cordage Co., 214 Mo. 685, 113 S.W. 1108; Hartzler v. Met. St. Ry. Co., 218 Mo. 562, 117 S.W. 1124; Railroad v. Flannigan, 218 Mo. 566; Kristanik v. Chevrolet Motor Co., 70 S.W. (2d) 892; Butler v. Board of Education, 16 S.W. (2d) 44; Woodling v. Westport Hotel Op. Co., 331 Mo. ......
  • Request a trial to view additional results

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