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(248 S.W.) of error, An attempt to secure its use in that, to be error where it appears that the matter behalf, as indicated by the record, renders a ruled upon was abandoned by the complainrestatement of the rule relevant. State ex ing party in pursuing another and different rel. v. Fort, 210 Mo. 525, and cases, 109 S. W. course from that upon which the assignment 737; State ex rel. Buckingham v. Kimmel, was based. State ex rel. Kimbrell v. People's (Mo. App.) 183 S. W. loc. cit. 652; State ex Ice Co., 246 Mo. 168, 151 S. W. 101. Not only rel. Aiken v. Buckner (Mo. App.) 203 S. W. did the defendant abandon his application, loc. cit. 243.

but cleared the way for this course by withA material question confronting us before drawing it from the court's consideration. considering defendant's contentions, and one [5] Further than this, the improper grantwhich it seems will suffice to determine this ing or refusal of a change of venue is a matcase, is discussed in State ex. rel. Thrash v. ter of exception. None was preserved in this Lamb, 237 Mo. 437, 141 S. W. 665. It was case. In re Drainage District v. Richardson, held in that case that the question as to 227 Mo. 252, 126 S. W. 1021; State ex rel. v. whether the state at the relation of the prose- Riley, 203 Mo. 175, 101 S. W. 567, 12 L. R. A. cuting attorney of a county may maintain (N. S.) 900; State ex rel. v. Evans, 184 Mo. an action to abate a public nuisance was one 632, 83 S. W. 447; Littleton v. Burgess, 16 to be raised and determined in the trial court, Wyo. 58, 91 Pac. 832, 16 L. R. A. (N. S.) 49. and that it did not go to the jurisdiction of [6] III. The right to the writ is invoked on the court; and as a consequence its decision the ground that the petition for injunction thereon did not furnish a basis for prohibi- tiled by the prosecuting attorney does not tion to restrain the court from the further state facts sufficient to constitute a cause of exercise of jurisdiction in the case.

action. The sufficiency of the petition was [3] Regardless of this ruling, however, we not challenged in the trial court. Under such have reviewed in their order the defendant's circumstances, prohibition will not lie. Hav. contentions. It is urged that the trial court ing jurisdiction of the subject matter and the exceeded its authority in not sustaining the parties, this court must presume that the application for a change of venue in the first trial court, if afforded an opportunity to rule suit brought by the prosecuting attorney, upon a demurrer or a motion to make more which was dismissed by him with the approv- definite and certain, will rule correctly. As al of the court. The prosecuting attorney we said in effect in State ex rel. Warde v. in bringing the suit was acting in his official McQuillin, 262 Mo. loc. cit. 268, 171 S. W. capacity, and, as a consequence, he was cloth- 72, it will not do for us to anticipate the ruled with such discretion as to authorize him ings of the judge upon the sufficiency of the to dismiss the proceeding if, in his judgment, pleadings or on the facts, or to imagine ersuch course was for the best interests of the rors in his future rulings and take over jupublic. Empowered to thus dispose of the ac- risdiction to ourselves, not only as to the suftion, controversy as to the regularity of that ticiency of the pleadings but on the merits, proceeding is foreclosed; and the presenta- as intermediate steps to arrest the progress tion and discussion of the court's action. in of a case pending below. that behalf are irrelevant. No adjudication To the same effect it was said in the Warde having been made in the first case other than Case: the judgment of dismissal, the parties were left to litigate the issues as though no action here is not one of mere pleading below, where

“On prohibition the determinative question had been commenced. Harrison v. Remington Paper Co., 140 Fed. 385, 72 c. C. A. 405, ment. It rises to the dignity of one of jurisdic

pleadings are amendable and often need amend3 L. R. A. (N. S.) 954, 5 Ann. Cas. 314.

tion in the strictest sense. [4] II. It is further contended that the "In that view of it, in Schubach-McDonald trial court exceeded its powers in refusing to Case [179 Mo. I. c. 182] are pertinent obsergive the defendant time to prepare and file vations, viz: 'The matter, therefore, coman application for a change of venue in the presses itself into the question whether or not second case before granting the temporary a basic subject-matter, over which a court of restraining order prayed for by the prosecut- egnity has jurisdiction, was presented to the ing attorney. Whether or not this was a prop suits. That is, whether a matter was pre

circuit court for adjudication by the injunction er exercise of the court's powers is rendered sented which that court has power to deal unnecessary of solution by the defendant's with, and not whether such a matter was inown action. The record discloses that the de- artificially or defectively presented. In other fendant, upon the entry of the temporary re- words, the question is one of jurisdiction and straining order by the court, filed the appli- not of pleading, for if the court had jurisdiccation for a change of venue, but immediate- tion over the subject-matter, it had the power ly thereafter withdrew the same and filed a

to decide whether the pleadings are or were motion to dismiss the temporary order. This not properly drawn, and also to decide whether constituted an abandonment of the applica- sought. If a court has the power to act, its

or not the plaintiff was entitled to the relief tion and a waiver of objections to the valid- jurisdiction is in no wise impaired by the conity of the court's action.

sideration whether it acted in accordance with The ruling of a trial court will not be held the law or erroneously. Given the jurisdiction,

248 S.W.-38

all else is a mere matter of error, to be cor- , State ex rel. Kleinschmidt v. Jones, 277 Mo. rected on appeal. Or, further illustrated, if 71, 209 S. W. 876; State ex rel. Railroad Co. the court has jurisdiction over the subject- v. Woolfolk, 269 Mo. 389, 190 S. W. 877; matter, it has the power to decide whether State ex rel. Gibson v. Railroad (Mo. App.) the petition does or does not state a cause of 191 S. W. 1051, The supplementary contenaction, and the mere failure of a petition to tion therefore that the statute (section 6594b, state a cause of action or the defective statement of a good cause of action, in no way af- supra) is unconstitutional, in that it denies fects the jurisdiction of the court.'”

the right to a trial by jury, is without merit,

as no such right exists in a proceeding of [7-9] IV. It is contended that the court this character. exceeded its powers in denying the defendant

[12] V. In considering the validity of the the right to a trial by jury., In support of statute it should be borne in mind that it this contention it is urged that this right, as does not provide, nor is it sought in this proaccorded by the state Constitution (sections ceeding, to try the defendant for a crime. 22 and 28, art. 2), has been violated. Sec- The temporary writ granted herein can have tion 22 has reference solely to criminal cases. reference only to what may be done in the It has no application here because this is future. If its terms be violated, the defendpurely an equitable proceeding. Section

ant (relator here) may be cited to answer for 6594b, Laws 1921, p. 415. Section 28 has ref- such violation. erence to the inviolability of the right to a

The statute provides: jury trial as heretofore enjoyed. This means

"If it is made to appear by affidavit, or that the right as it existed at common law is otherwise to the satisfaction of the court, or not to be impaired. This guaranty has not judge in vacation, that such nuisance exists a been held to apply to cases in equity. State temporary writ of injunction shall forthwith isex rel. Thrash v. Lamb, 237 Mo. 437, 141 S. sue restraining the defendant," etc. W. 665; State ex rel. v. Canty, 207 Mo. 439,

[13] This statute is but a declaration of 105 S. W. 1078, 15 L. R. A. (N. S.) 747, 123 one of the many phases of the police power, Am. St. Rep. 393, 13 Ann. Cas. 787. To give which is conceded to include everything esconcrete application to the rule, where the sential to the preservation of the public application is for an injunction to abate a health, safety, and morals. Included within public nuisance, no damages being asked, the the exercise of this power is the abatement constitutional guaranty does not apply. Ex of nuisances by summary proceedings if the parte Keeler, 45 S. C. 537, 23 S. E. 865, 31 L. same be found within the purview of the R. A. 678, 55 Am. St. Rep. 785. Where, as

statute. in the instant case, relief is sought in the

In the exercise of this power a particular abatement of a nuisance, although as an in- discretion is vested in the Legislature in cident thereto the defendant may be made framing the statute and also in the courts in liable for the costs and the judgment there

the enforcement of same. Two cardinal for may go against the property used in car- rules are to be observed in the exercise of rying on the nuisance, if no other damage or this power on behalf of the public: One is relief is sought, the defendant is not entitled that the interests of the public demand the to a jury. King v. Commonwealth, 194 Ky. interference; and the other that the means 143, 238 S. W. 373.

employed be reasonably necessary for the acThe opinion in the King Case, supra, con complishment of the purpose in view and not tains a compilation and discussion of nu- Junduly oppressive upon individuals. In the cases from different jurisdictions

presence of these conditions, in no wise conwhich uniformly sustain the rule as

travened by the terms of the statute, the nounced,

right to exercise the power therein defined is [10, 11] The cases cited by respondent (Mc

not subject to question. The enforcement of Millian v. Wiley, 45 Fla. 487, 33 South. 993 ; the statute not having been shown to be in Wiggins v. Williams, 36 Fla. 637, 18 South.

excess of the power conferred and defendant 859, 30 L. R. A. 754; Davis v. Settle, 43 W. Va. 17, 26 S. E. 557) that where the effect of having been deprived of no constitutional a statute was to give a remedy in equity for should be discharged, and it is so ordered.

right, the preliminary writ issued herein what was formerly a legal demand have no application here. A proceeding to abate a WOODSON, C. J., and WHITE, J., concur. public nuisance is inherent in courts of equity D. E. BLAIR, J., concurs except in paragraph and cannot be divested, although such acts 2. JAMES T. BLAIR and GRAVES, JJ., dismay entail a violation of the criminal law. sent.



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(248 S.W.)

rigated Land Company and A. D. Dickinson, SEVERSON V. DICKINSON. (No. 23225.) Jr., Defendants. The State of Wisconsin to

Said Defendants: You are hereby summoned to (Supreme Court of Missouri, Division No. 2. appear within twenty days after service of this Feb. 23, 1923.)

summons, exclusive of the day of service, and

defend the above-entitled action in the court 1. Courts fm 487(4)-Supreme Court will not aforesaid, and, in case of your failure so to do, retain jurisdiction not shown by record. judgment will be rendered against you accord

The Supreme Court will not retain juris- ing to the demand of the complaint. Richmond, diction of an appeal unless affirmatively shown Jackman, Wilkie & Toebaas, Plaintiff's Attorby the record, but will transfer the cause to neys. P. O. Address, 111 South Hamilton St., the Court of Appeals regardless of demand Madison, Dane County, Wisconsin.” therefor.

That the sheriff of said Monroe county, 2. Courts fm231(23)-Constitutional question by his return, certified that on June 25, 1919, waived by failure to raise before motion for he delivered to and left with defendant pernew trial. Defendant must raise a constitutional ques

sonally a true copy of said summons, indors. tion at the earliest moment good pleading and ing the date of service upon the copy, and orderly procedure admits, and, where it could signing his name thereto. That he knew the have been raised by answer, but was not sug- person so served to be the person mentioned gested until motion for new trial, it was waiv- and intended as one of the defendants in said ed, and cannot give Supreme Court jurisdiction action. That on July 8, 1919, the plaintiff

caused said summons and notice and said reAppeal from Circuit Court, Jackson Coun- turn of said sheriff to be filed in the circuit

court of Dane county, Wis. That defendty; Thad B. Landon, Judge.

ant entered no appearance in said suit, and Action by S. T. Severson against A. D. was a nonresident of Wisconsin. That on Dickinson, Jr. Judgment for plaintiff, and | October 4, 1919, plaintiff filed in said circuit defendant appeals.

Transferred to Kansas court of Dane county his complaint, pursuCity Court of Appeals.

ant to said notice served, as aforesaid, on W. F. Zumbrunn, of Kansas City, for ap- defendant, and on the 26th day of February, pellant.

1920, the judgment herein sued on was duly Edwin A. Krauthoff, W. S. McClintock, and entered and made. That said judgment was A, L. Quant, all of Kansas City, for respond- a valid judgment, in personam, against deent.

fendant, and is entitled to full faith and

credit within the state of Missouri under Statement,

article 4, § 1, of the United States ConstituDAVIS, C. This action was instituted in tion and the Acts of Congress; that the cirthe circuit court of Jackson county on a cuit court of Dane county is a court of genjudgment in favor of the plaintiff, alleged to eral jurisdiction, and in said suit had jurishave been rendered against the defendant in diction of the subject matter and of defendthe circuit court of Dane county, Wis. The ant, under and by virtue of said provisions amount involved is $4,639.49. The defendant of the Constitution of the state of Wisconsin interposed an amended answer, the impor- and of the statutes of said state then in full tant features of which are:

force and effect, and pursuant to which said "(a) That the court in Wisconsin was with- circuit court then had such jurisdiction at ont jurisdiction of the subject-matter to render the times mentioned, which provisions of the judgment which it did. (b) Was without said Constitution and the statutes, tending to jurisdiction of the person of the defendant for show the validity of said judgment of the the reason that the court did not have jurisdic- circuit court of Dane county, plaintiff sets tion of the subject matter to render the judg-forth in said reply. ment which it did. (c) That the court in Wis

Plaintiff introduced evidence in support of consin never acquired a valid personal service upon the defendant, and therefore the defend- bis petition and reply, which tended to supant never was before the court, and the judg- port the allegations of the petition and rement, as afterwards rendered, was therefore ply. Defendant refused to introduce evi.

dence. The court found the issues and ren

dered judgment, upon the Wisconsin judgTo the amended answer plaintiff filed a re- ment, in favor of plaintiff and against deply, first, a general denial, and, second, af

fendant in the sum of $4,639.49, with infirmative matter, stating substantially:

terest. Defendant filed a motion for a new That on or about June 25, 1919, plaintiff trial, and for the first time raised therein a commenced suit against defendant in Dane constitutional question as herewith set out: county, Wis., and delivered by his attorneys to the sheriff of Monroe county, Wis., a cer

"The court in the state of Wisconsin having tain written notice as follows:

no jurisdiction of the subject-matter, the court,

in the instant case committed error in ren"State of Wisconsin, Circuit Court, Dane dering judgment in favor of plaintiff for the County. S. T. Severson, Plaintiff, v. Texas Ir- Treason that in so doing it violates the Four

Em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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null and void."

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teenth Amendment to the Constitution of the As was said in Scott v. Dickinson (Mo.
United States in that it is the taking of prop- Sup.) 217 S. W. 270, loc. cit. 271:
erty without due process of law."

"This court has uniformly held that, unless Such further facts and matters as are nec- a constitutional question, intended to confer essary to a determination of the questions jurisdiction on this tribunal

, is presented at involved will be stated in the opinion.

the earliest practical opportunity, kept alive

throughout the trial, and briefed here, we would Opinion.

not retain jurisdiction of the case." [1] I. Appellant appealed to this court,

[2] Defendant failed to raise a constitubecause, as he asserts, constitutional ques- tional question at the earliest moment that tions are involved. As the sum involved is good pleading and orderly procedure admitless than the amount necessary to confer ju

ted. Good pleading and orderly procedure risdiction on this court, it will not retain first compelled defendant to raise the conjurisdiction unless a constitutional question stitutional question involved in his answer. is involved, and that question raised timely. Waiting to raise it in his motion for a new Respondent calls attention to the constitu- trial was too late. tional question without filing a formal mo

II, As a timely constitutional question is tion to transfer to the Kansas City Court of not here raised, and as the amount involved Appeals. It is not the policy of this court is without the jurisdiction of this court, the to retain jurisdiction unless affirmatively merits of the controversy may not be passed shown by the record. As was held in Burns upon here. The same is accordingly transv. Prudential Insurance Co. (Mo. Sup.) 247 ferred to the Kansas City Court of Appeals. S. W. 159, not yet (officially] reported:

RAILEY and REEVES, CC., concur. "None of the parties to the action have challenged the right of this court to pass upon the PER CURIAM. The foregoing opinion of case, but as jurisdiction to try the same cannot DAVIS, C., is hereby adopted as the opinion be conferred by silence or consent it becomes our duty to examine the record, and determine of the court. therefrom whether we have acquired jurisdic

All of the Judges concur. tion to dispose of the case, on account of the alleged constitutional questions attempted to be raised herein."

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See May v. Mortgage Trust Co., 138 Mo. loc. cit. 449, 40 S. W. 122; Railroad V.

STATE V. BAIRD. (No. 24102.) Schweitzer, 246 Mo. 122, 151 S. W. 128; Du-|(Supreme Court of Missouri, Division No. 2. bowsky v. Binggeli, 258 Mo. 197, 200, 167 S.

Feb. 23, 1923.) W. 999; Rollins v. Business Men's Acc. Ass'n (Mo. Sup.) 213 S. W. 52, 53; Stough v. Steel- !. Homicido em 135(4) Information for first ville E. L. & P. Co. (Mo. Sup.) 217 S. W. loc.

degree murder held not insufficient as omitcit. 518; Berniger Moving Co. v. O'Brien

ting word “with." (Mo. Sup.) 234 S. W. loc. cit. 812; Rice v.

An information for murder in the first deWhite (M0. Sup.) 239 S. W. 145; Cable v.

gree, charging that defendant and another "upDuke, 208 Mo. loc. cit. 558, 106 S. W. 643; dangerous and deadly weapon, to wit, a pistol,

on one C.

did make an assault and a Lohmeyer v. Cordage Co., 214 Mo. loc. cit. *

in their hands then and there had 687, 113 S. W. 1108.

and held, at and against him

• did In Lohmeyer v. Cordage Co., 214 Mo. 685, sboot off and discharge,” etc., held not insuffi113 S. W. 1108, the court say:

cient on the ground that the word "with" was

omitted after the word "assault." “It must be taken as settled law that in so grave a matter as a constitutional question it 2. Homicide aw 137—Information for first deshould be lodged in the case at the earliest mo gree murder held not defective as to statement that good pleading and orderly procedure ment of time of death. will admit under the circumstances of the given An information for murder in the first decase, otherwise it will be waived."

gree held not insufficient because it stated that See West v. Dyer (Mo. Sup.) 212 S. W. 880; stead of, "of the mortal wound aforesaid then

deceased "of mortal wound aforesaid died" inChapman v. Adams (Mo. Sup.) 230 S. W. 80; and there died,” it appearing that deceased died Scott v. Dickinson (Mo. Sup.) 217 S. W. 270; two days after the assault. Turner v. Tyler, etc., Co., 259 Mo. 15, 167 S. W. 973; Deiner v. Sutermeister, 266 Mo. 3. Criminal law em 1063(1)→Bill of exceptions 505, 178 S. W. 757; Strother v. Railroad, 274

not considered, where motions for new trial

and in arrest were not filed until after judge Mo. 272, 203 S. W, 207; State ex rel. Jones

ment and sentence. v. Howe Scale Co., 277 Mo. 213, 210 S. W. 8;

Where, after a conviction for murder in Burns v. Prudential Insurance Co. (Mo. Sup.) the first degree, it appeared that motions for 247 S. W. 159, and cases cited. It must also a pew trial and in arrest of judgment were not be kept alive throughout the trial.

filed until after the judgment was entered and


(248 S.W.) sentence pronounced, and therefore not in com- upon the body of him, the said James A. Crabpliance with Rev. St. 1919, $ 4079, the motions tree, giving to him, the said James A. Crabtree, were in contemplation of law not filed, and then and there with the dangerous and deadly consequently the purported bill of exceptions weapon, to wit, the pistol aforesaid, in and up. could not be considered.

on the body of him, the said James A. Crabtree,

one mortal wound, of which mortal wound the 4. Criminal law Emil 117, 1118-Application for said James A. Crabtree, from the 9th day of change of venue and for continuance must be March, 1921, until the 11th day of March, incorporated in bill of exceptions to be re- 1921, at the county aforesaid, did languish, and viewed.

languishing did live, on which said 11th day of Application for change of venue and con- March, 1921, the said James A. Crabtree, at tinuance are matters of exception, and must be the county of Stone aforesaid, of the mortal incorporated in the bill of exceptions, in order wound aforesaid, died, and W. E, Renfro, prosto be reviewed by the appellate court.

ecuting attorney aforesaid, upon his oath of 5. Criminal law Om 1063(1) Record proper

office aforesaid, does say that the said Stanonly may be considered in absence of motion ley Baird and Gip Webster, him the said James for new trial and in arrest.

A. Crabtree, in the manner and by the means

aforesaid, feloniously, willfully, deliberately, In the absence of a motion for new trial and in arrest of judgment, nothing but the rec- premeditatedly and of their malice aforethought

did kill and murder; against the peace and ord proper can be considered by the appellate

dignity of the state.

"W. E. Renfro, Prosecuting Attorney." Appeal from Circuit Court, Christian On September 16, 1921, the jury returned County; C. H. Skinker, Judge.

in open court the following verdict: Stanley Baird was convicted of murder “We, the jury, find the defendant, Stanley in the first degree, and he appeals. Affirmed. Baird, guilty as charged in the information, of G. Purd Hays, of Ozark, Rufe Scott, of murder in the first degree and assess his pun. .

ishment at imprisonment in the state penitenGalena, W. L. Vandeventer, of Hartville, and tiary for the term of his natural life. Robt. L. Gideon, of Forsyth, for appellant.

“T. G. Ladd, Foreman." Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State. The record proper shows the following en

tries relative to the judgment, sentence, moDAVIS, C. The prosecuting attorney of tion for a new trial and motion in arrest of Stone county, by information filed on the judgment, to wit: day of July, 1921, charged defendant

"State of Missouri, Plaintiff, 109_1_1191 and Gip Webster with murder in the first de Stanley Baird, Defendant, Murder. Sentence gree. On a change of venue to Christian and Judgment. Now, at this 16th day of Septemcounty, defendant was, on the 16th day of ber, A. D. 1921, same being the eleventh judiSeptember, 1921, convicted and sentenced to cial day of the regular September term, 1921, life imprisonment, for that, on March 9, 1921, comes the prosecuting attorney for the state, he mortally wounded by a pistol shot James and also comes the defendant herein, in person, A. Crabtree, who subsequently died.

in the custody of the sheriff of this county, in The information, omitting caption and ver- the presence of his attorney and counsel in ification, is as follows:

open court, whereupon the said defendant is in

formed by the court that he has been found "W. E. Renfro, prosecuting attorney, within guilty of murder in the first degree by a jury, and for the county of Stone, in the state of and punishment assessed at imprisonment in Missouri

, informs the court on his oath of of- the state penitentiary for a term of his natural fice and to the best of his knowledge, informa- life, and being now asked by the court if he had tion and belief that Stanley Baird and Gip any legal cause to show why judgment should Webster, on or about the 9th day of March, not be pronounced against him according to 1921, at the said county of Stone, in and upon law, and still failing to show cause, it is thereone James A. Crabtree, then and there being, fore sentenced, ordered. and adjudged by the feloniously, willfully, deliberately, premeditat- court that the said defendant, Stanley Baird, edly and of their malice aforethought, did make having been found guilty as aforesaid, be conan assault and a dangerous and deadly weap- fined in the penitentiary of the state of Mison, to wit, a pistol then and there loaded with souri for a period of his natural life, from the gunpowder and leaden balls, which they, the 16th day of September, 1921, and that the shersaid Stanley Baird and Gip Webster, in their iff of this county shall, without delay, remove bands then and there had and held, at and and safely convey the said defendant to the against him, the said James A. Crabtree, then said penitentiary, there to be kept, confined, and and there feloniously, on purpose and of their treated in the manner directed by law, and the malice aforethought, willfully, deliberately and said defendant, in the state penitentiary aforepremeditatedly, did shoot off and discharge, and said, until the judgment and sentence of the with the pistol aforesaid, and the leaden balls court herein be complied with, or until the said aforesaid, then and there feloniously, on pur- defendant shall be otherwise discharged by due pose and of their malice aforethought, willfully, course of law. It is further considered, order. deliberately and premeditatedly, did shoot and ed, and adjudged by the court that the state strike him, the said James A. Crabtree, in and have and recover of said defendant the costs in

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