173 Mo. 547 | Mo. | 1903
This action originated in Polk county, Missouri, out of the killing of the infant son
Thereupon the defendant moved the court to require plaintiff to give security for the costs, and the court sustained said motion, but ruled that he would permit plaintiff to try the issue as to which party should pay the costs already accrued, without giving a bond for costs, and thereupon in order to raise said issue plaintiff filed her motion setting up the foregoing facts, and prayed that the case should be dismissed at the costs of defendant. The defendant objected to going to trial on any issue before the jury, for the
Defendant in due time filed its motion for new trial, and the same was overruled, and it appealed to this court. Among other grounds, the motion assigns as a reason that “the court erred in mailing up an issue outside of the one raised by the pleadings, thereby depriving defendant of the rights guaranteed by section 30 of article 2 of the Constitution of Missouri ‘that no person shall be deprived of property without due process of law.’ ”
I. The question which forces itself upon us is, has this court jurisdiction of this appeal?
By the amendment to the Constitution of this State adopted at the November election in 1884, this court is given exclusive jurisdiction to hear and determine appeals “in all cases . . . involving the
It is obvious, we think, that under the allegations of the answer and the reply, the original claim of $5,000 for damages is no longer an issue in this case, but the sole and only question is, who shall pay the costs upon the dismissal of the action? Plaintiff admits .she agreed to receive and did receive the $510 in satisfaction of her damages, and is not claiming 'any further damages, nor asking to have the dismissal set aside, and defendant pleads that settlement, and only asks that the cause be dismissed at plaintiff’s costs, and plaintiff repudiates the agreement to the extent of being charged with the costs. The amount then does not confer-jurisdiction. Does the constitutional question raised in the motion for a new trial, to-wit, that if the judgment stands, adjudging'costs against defendant, it will be deprived of its property without due process of law, require this court to determine the case? If it does, then every time a judgment is rendered against any party, all that he or she will be required to do to insure a hearing of his or her appeal in this court, is to allege in a motion for new trial that if the judgment stands it will deprive him or her of his or her property without due process of law.
In the case at bar the defendant was brought be-' fore the court by summons duly served; its pleas were filed and issue joined thereon; its evidence was heard; the court had jurisdiction of the- subject-matter, and •the parties; that it may have erred in a matter of practice did not raise a question involving the construction of the Constitution of this State.
This was the exact point settled in Hulett v. Railroad, 145 Mo. 35. This court in Banc in Hilgert v. Barber Asphalt Paving Company, 173 Mo. 319, reasserted the same doctrine.
The Kansas City Court of Appeals has the same jurisdiction to decide the regularity or irregularity of'
This appeal should have been certified to the Kansas City Court of Appeals, and it is accordingly so ordered.