Wright v. Tucker, 36328.

• Decision Date: 06 March 1940
• Docket Number: No. 36328.,36328.
• Citation: 137 S.W.2d 557
• Parties: WRIGHT v. TUCKER et al.
• Court: Missouri Supreme Court

137 S.W.2d 557

WRIGHT v. TUCKER et al.

No. 36328.

Supreme Court of Missouri, Division No. 1.

March 6, 1940.

Appeal from Circuit Court, Jackson County, Division No. 1; Emory H. Wright, Judge.

Action by George E. Wright against J. H. Tucker and C. W. Royer, doing business as the Saxon Lamar Company, by attachment to recover a sum paid as interest in excess of the legal rate. From an adverse judgment, defendants appeal.

Cause transferred to the Kansas City Court of Appeals.

Louis W. Krings, of Kansas City (Julius C. Shapiro, of Kansas City, of counsel), for appellant.

Chet D. Vance, of Kansas City, for respondent.

HYDE, Commissioner.

This is an action, brought by attachment before a Justice of the Peace, to recover $225 paid as interest in excess of the legal rate, and is based on Section 2842, R.S. 1929, Mo.St.Ann. § 2842, p. 4630. Defendant Boyer appealed to the Circuit Court of Jackson County. Defendant there filed a plea in abatement which was overruled and judgment entered affirming the judgment of the Justice Court. Defendant has appealed therefrom.

In his plea in abatement, defendant made a claim that the statute, under which the Justice of the Peace (before whom the case was tried) held his appointment, was unconstitutional because it was "purely local and special to Kaw Township and in violation of Section 53, paragraphs 2, 4, 15, 17, 18, and Section 54 of Art. 4 of the Constitution of Missouri" and in violation also of Section 37 of Art. 6 thereof providing for the office of Justice of the Peace. Defendant also made the claim of unconstitutionality based upon the violation of the due process of law and equal protection of law provisions of the State and Federal Constitutions. These constitutional questions were restated in defendant's motion for new trial. Apparently, because of these contentions, the appeal was granted to this court. However, defendant has now abandoned these constitutional contentions by failing to set them out as assignments of error and by not mentioning them in his points and authorities or argument. Clay v. Owen, 338 Mo. 1061, 93 S.W.2d 914; Majors v. Malone, 339 Mo. 1118, 100 S.W.2d 300; sec. 1060 R.S.1929, Mo.St.Ann. § 1060, p. 1341; Supreme Court Rule 15; Robinson v. Nick, Mo.Sup., 134 S.W.2d 112. Defendant, moreover, frankly says "certain constitutional federal and state questions in good faith originally presented are not here called for review and may be treated as abandoned."

Defendant states the issues on this appeal, in his brief, as follows: "Defendant makes two contentions and assignments of error. (1) Plaintiff's petition stated a cause of action, if any, not existant at common law, but upon a remedial right and remedy created solely...