256 Mo. 165 | Mo. | 1914
In the case of Botts v. Wabash Railroad Company and St. Louis & Hannibal Railroad Company, 248 Mo. 56, Division One of this court in discussing a similar situation reached the conclusion that under such circumstances this court did not have jurisdiction of the. case. In that case Bond, J., speaking for the court, announced the rule, here applicable, as follows:
“An objection to the constitutionality of a statute made in the trial court, which is abandoned after appeal taken to this court, or which is not attempted to be maintained either by argument or specification of the constitutional invalidity of such statute, is merely colorable and meritless; and if held sufficient ground to vest,jurisdiction in this court, would necessarily divest courts, of appeal of their lawful jurisdiction in any case where the counsel saw fit to make such claim during the trial. The appellate jurisdiction of the courts of appeal cannot be destroyed by the injection of sham questions of unconstitutionality in the trial courts, which are not deemed worthy of presentation or argument after the case has been gotten here by that process. That is what the record shows was done in this case.' This performance does not present any real constitutional question for review in this court.”
It therefore follows that the case at bar should be transferred to the St. Louis Court of Appeals. It is so ordered.
— The foregoing opinion of Williams, C., is adopted as the opinion of the conrt.