218 Mo. 566 | Mo. | 1909
This cause was transferred to this court from the St. Louis Court of Appeals on the idea that a constitutional question is involved, hut 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 Tour-ville was an employee 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, Illinois, 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 Company before a justice of the peace in the city of St. Louis for the same debt and obtained judgment for that
In its motions for a new trial and in arrest of judgment among other grounds the appellant said:
“7. Because in entering said judgment this honorable court denied the defendant [doubtless meaning plaintiff] the equal protection of the laws and deprived it of its property without due process of law in violation of the 14th Amendment to the Constitution of the .United States, and of section 30 of article 2 of the Constitution of the State'of Missouri.”
After those motions were overruled appellant applied for an appeal to the St. Louis Court of Appeals and it was granted, and the record was lodged in that court for review. In due time appellant filed in that court its abstract and brief; in the latter, under the caption “Points and Authorities,” were only two points, first: “The restraining order being merely incidental or ancillary to the principal object of the suit,
We have held that where a point in litigation cannot be decided without construing a particulár clause in the Constitution, a constitutional question is in the very vitals of the case and whether raised or not in the trial court, the appeal must come to this court. [State ex rel. Smith v. Smith, 152 Mo. 444.] But whether, in a ease where the 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 in this' case Mr. Rule did actually employ’Mr. Johnson as his attorney, are questions that can be decided without going to the Constitution, either State or Federal; for the proper answer to the one we go to the common law or the statute law of the State, and to the other we go to the evidence in the case.
We have also held that it was incumbent on the party desiring to raise. a constitutional question to raise it at the first opportunity for doing so, and not bring it in as an afterthought when the case has gone against him on the theories on which he tried it. But in the application of this rule we recognize that the opportunity to invoke the protection of a particular clause in the Constitution may not arise until the trial is under way, sometimes perhaps, as in the case of an
We have also held that in order to raise a constitutional question the party complaining must point to the particular section of the Constitution <Su which he relies; it will not do to say in general terms that the act complained of is in violation of the Constitution. [Ash v. City of Independence, 169 Mo. 77; Hardin v. Carthage, 171 Mo. 442; Shaw v. Goldman, 183 Mo. 461.] In this case the appellant has specified the particular section of the State Constitution which it asserts has been violated, and, by descriptive words, has indicated that it is the rights guaranteed to appellant under the first section of the 14th Amendment of the Federal Constitution that have been disregarded. Therefore, it cannot be said that appellant was either belated in the assertion of his constitutional rights or lacking in the matter of specification of section and article.
Rut due time and specification in the points above mentioned are not the only requisites for giving this court jurisdiction on the idea that a constitutional question is involved; there must also be some rational connection between the facts of the ease and the section of the Constitution invoked. When a judgment is rendered against a man which he is thoroughly convinced is absolutely wrong and the sheriff comes and takes his property to satisfy it, he is apt to feel that all law and constitutional guarantees have been violated.
. We do not mean of course to imply that the party must show that his constitutional point is sound, before he can be heard on it, but we do mean to say that he must show that under the facts of the case, as he contends they are, a question under the particular clause of the Constitution is raised and calls for judgment.
Why the attorney for the appellant inserted this point in his motions for a new trial and in arrest we of course do not know, but we are entirely satisfied that if he ever thought that such a point was in his case he soon changed his mind, because he asked for and took his appeal to the St. Louis Court of Appeals and filed his brief in that court asking a reversal of the judgment on the two grounds alone hereinabove mentioned and never once alluded to his constitutional rights. It does not appear that it was on his motion that the cause was