(248 S.W.)

[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. 1. 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-equity has jurisdiction, was presented to the circuit court for adjudication by the injunction ing attorney. Whether or not this was a propsuits. That is, whether a matter was preer exercise of the court's powers is rendered sented which that court has power to deal cnnecessary 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 to decide whether the pleadings are or were ly thereafter withdrew the same and filed a motion to dismiss the temporary order. This not properly drawn, and also to decide whether or not the plaintiff was entitled to the relief constituted an abandonment of the applicasought. If a court has the power to act, its 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,

all else is a mere matter of error, to be corrected on appeal. Or, further illustrated, if the court has jurisdiction over the subjectmatter, it has the power to decide whether the petition does or does not state a cause of action, and the mere failure of a petition to

state a cause of action or the defective statement of a good cause of action, in no way affects the jurisdiction of the court.""

[7-9] IV. It is contended that the court exceeded its powers in denying the defendant the right to a trial by jury., In support of this contention it is urged that this right, as accorded by the state Constitution (sections 22 and 28, art. 2), has been violated. Section 22 has reference solely to criminal cases. It has no application here because this is purely an equitable proceeding. Section 6594b, Laws 1921, p. 415. Section 28 has reference to the inviolability of the right to a jury trial as heretofore enjoyed. This means that the right as it existed at common law is not to be impaired. This guaranty has not been held to apply to cases in equity. State ex rel. Thrash v. Lamb, 237 Mo. 437, 141 S. W. 665; State ex rel. v. Canty, 207 Mo. 439, 105 S. W. 1078, 15 L. R. A. (N. S.) 747, 123 Am. St. Rep. 393, 13 Ann. Cas. 787. To give concrete application to the rule, where the application is for an injunction to abate a public nuisance, no damages being asked, the constitutional guaranty does not apply. Ex parte Keeler, 45 S. C. 537, 23 S. E. 865, 31 L. R. A. 678, 55 Am. St. Rep. 785. Where, as in the instant case, relief is sought in the abatement of a nuisance, although as an incident thereto the defendant may be made liable for the costs and the judgment therefor may go against the property used in carrying on the nuisance, if no other damage or relief is sought, the defendant is not entitled to a jury. King v. Commonwealth, 194 Ky. 143, 238 S. W. 373.

The opinion in the King Case, supra, contains a compilation and discussion of numerous cases from different jurisdictions which uniformly sustain the rule as announced.

State ex rel. Kleinschmidt v. Jones, 277 Mo. 71, 209 S. W. 876; State ex rel. Railroad Co. v. Woolfolk, 269 Mo. 389, 190 S. W. 877; State ex rel. Gibson v. Railroad (Mo. App.) 191 S. W. 1051. The supplementary contention therefore that the statute (section 6594b, supra) is unconstitutional, in that it denies the right to a trial by jury, is without merit, as no such right exists in a proceeding of this character.

[12] V. In considering the validity of the statute it should be borne in mind that it does not provide, nor is it sought in this proceeding, to try the defendant for a crime. The temporary writ granted herein can have reference only to what may be done in the future. If its terms be violated, the defendant (relator here) may be cited to answer for such violation.

The statute provides:

otherwise to the satisfaction of the court, or "If it is made to appear by affidavit, or judge in vacation, that such nuisance exists a temporary writ of injunction shall forthwith issue restraining the defendant," etc.

[13] This statute is but a declaration of one of the many phases of the police power, which is conceded to include everything essential to the preservation of the public health, safety, and morals. Included within the exercise of this power is the abatement of nuisances by summary proceedings if the same be found within the purview of the

statute.

In the exercise of this power a particular discretion is vested in the Legislature in framing the statute and also in the courts in the enforcement of same. Two cardinal rules are to be observed in the exercise of this power on behalf of the public: One is that the interests of the public demand the interference; and the other that the means employed be reasonably necessary for the accomplishment of the purpose in view and not unduly oppressive upon individuals. In the presence of these conditions, in no wise contravened by the terms of the statute, the right to exercise the power therein defined is [10, 11] The cases cited by respondent (Me- 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. 859, 30 L. R. A. 754; Davis v. Settle, 43 W. excess of the power conferred and defendant having been deprived of no constitutional Va. 17, 26 S. E. 557) that where the effect of 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.

(248 S.W.)

SEVERSON v. DICKINSON. (No. 23225.) (Supreme Court of Missouri, Division No. 2. Feb. 23, 1923.)

rigated Land Company and A. D. Dickinson, Jr., Defendants. The State of Wisconsin to Said Defendants: You are hereby summoned to appear within twenty days after service of this summons, exclusive of the day of service, and defend the above-entitled action in the court 1. Courts 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.

2. Courts 231 (23)-Constitutional question waived by failure to raise before motion for new trial.

That the sheriff of said Monroe county, by his return, certified that on June 25, 1919, he delivered to and left with defendant personally a true copy of said summons, indors. Defendant must raise a constitutional ques- ing the date of service upon the copy, and tion at the earliest moment good pleading 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 re

Appeal from Circuit Court, Jackson Coun- turn of said sheriff to be filed in the circuit ty; Thad B. Landon, Judge.

Action by S. T. Severson against A. D. Dickinson, Jr. Judgment for plaintiff, and defendant appeals. Transferred to Kansas City Court of Appeals.

court of Dane county, Wis. That defendant entered no appearance in said suit, and was a nonresident of Wisconsin. That on October 4, 1919, plaintiff filed in said circuit court of Dane county his complaint, pursuant to said notice served, as aforesaid, on

W. F. Zumbrunn, of Kansas City, for ap- defendant, and on the 26th day of February, pellant.

Edwin A. Krauthoff, W. S. McClintock, and A. L. Quant, all of Kansas City, for respond

ent.

Statement.

DAVIS, C. This action was instituted in the circuit court of Jackson county on a judgment in favor of the plaintiff, alleged to have been rendered against the defendant in the circuit court of Dane county, Wis. The amount involved is $4,639.49. The defendant interposed an amended answer, the important features of which are:

1920, the judgment herein sued on was duly entered and made. That said judgment was a valid judgment, in personam, against defendant, and is entitled to full faith and credit within the state of Missouri under article 4, § 1, of the United States Constitution and the Acts of Congress; that the circuit court of Dane county is a court of general jurisdiction, and in said suit had jurisdiction of the subject-matter and of defendant, under and by virtue of said provisions of the Constitution of the state of Wisconsin and of the statutes of said state then in full force and effect, and pursuant to which said "(a) That the court in Wisconsin was with- circuit court then had such jurisdiction at out 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 WisPlaintiff introduced evidence in support of consin never acquired a valid personal service upon the defendant, and therefore the defend- his 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 evinull and void."

To the amended answer plaintiff filed a reply, first, a general denial, and, second, af-! firmative matter, stating substantially:

That on or about June 25, 1919, plaintiff commenced suit against defendant in Dane county, Wis., and delivered by his attorneys to the sheriff of Monroe county, Wis., a certain written notice as follows:

dence. The court found the issues and rendered judgment, upon the Wisconsin judgment, in favor of plaintiff and against defendant in the sum of $4,639.49, with interest. Defendant filed a motion for a new

trial, and for the first time raised therein a constitutional question as herewith set out:

"The court in the state of Wisconsin having 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-reason that in so doing it violates the Four

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

teenth Amendment to the Constitution of the United States in that it is the taking of property without due process of law."

Such further facts and matters as are nec

essary to a determination of the questions involved will be stated in the opinion.

Opinion.

[1] I. Appellant appealed to this court, because, as he asserts, constitutional questions are involved. As the sum involved is less than the amount necessary to confer jurisdiction on this court, it will not retain jurisdiction unless a constitutional question is involved, and that question raised timely. Respondent calls attention to the constitutional question without filing a formal motion to transfer to the Kansas City Court of Appeals. It is not the policy of this court to retain jurisdiction unless affirmatively shown by the record. As was held in Burns v. Prudential Insurance Co. (Mo. Sup.) 247 S. W. 159, not yet [officially] reported:

"None of the parties to the action have challenged the right of this court to pass upon the case, but as jurisdiction to try the same cannot be conferred by silence or consent it becomes our duty to examine the record, and determine therefrom whether we have acquired jurisdiction to dispose of the case, on account of the alleged constitutional questions attempted to be raised herein."

See May v. Mortgage Trust Co., 138 Mo. loc. cit. 449, 40 S. W. 122; Railroad v. Schweitzer, 246 Mo. 122, 151 S. W. 128; Dubowsky v. Binggeli, 258 Mo. 197, 200, 167 S. W. 999; Rollins v. Business Men's Acc. Ass'n (Mo. Sup.) 213 S. W. 52, 53; Stough v. Steelville E. L. & P. Co. (Mo. Sup.) 217 S. W. loc. cit. 518; Berniger Moving Co. v. O'Brien (Mo. Sup.) 234 S. W. loc. cit. 812; Rice V. White (Mo. Sup.) 239 S. W. 145; Cable v. Duke, 208 Mo. loc. cit. 558, 106 S. W. 643; Lohmeyer v. Cordage Co., 214 Mo. loc. cit. 687, 113 S. W. 1108.

As was said in Scott v. Dickinson (Mo. Sup.) 217 S. W. 270, loc. cit. 271:

"This court has uniformly held that, unless a constitutional question, intended to confer jurisdiction on this tribunal, is presented at the earliest practical opportunity, kept alive throughout the trial, and briefed here, we would not retain jurisdiction of the case."

[2] Defendant failed to raise a constitutional question at the earliest moment that good pleading and orderly procedure admitted. Good pleading and orderly procedure first compelled defendant to raise the constitutional question involved in his answer. Waiting to raise it in his motion for a new trial was too late.

II. As a timely constitutional question is not here raised, and as the amount involved is without the jurisdiction of this court, the merits of the controversy may not be passed upon here. The same is accordingly transferred to the Kansas City Court of Appeals. RAILEY and REEVES, CC., concur.

PER CURIAM. The foregoing opinion of DAVIS, C., is hereby adopted as the opinion

did make an assault and a dangerous and deadly weapon, to wit, a pistol, * in their hands then and there had and held, at and against him

* *

*

did

In Lohmeyer v. Cordage Co., 214 Mo. 685, shoot 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 should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived."

See West v. Dyer (Mo. Sup.) 212 S. W. 880; Chapman v. Adams (Mo. Sup.) 230 S. W. 80; Scott v. Dickinson (Mo. Sup.) 217 S. W. 270; Turner v. Tyler, etc., Co., 259 Mo. 15, 167 S. W. 973; Deiner v. Sutermeister, 266 Mo. 505, 178 S. W. 757; Strother v. Railroad, 274 Mo. 272, 203 S. W. 207; State ex rel. Jones v. Howe Scale Co., 277 Mo. 213, 210 S. W. 8; Burns v. Prudential Insurance Co. (Mo. Sup.) 247 S. W. 159, and cases cited. It must also be kept alive throughout the trial.

2. Homicide

137-Information for first degree murder held not defective as to statement of time of death.

An information for murder in the first degree held not insufficient because it stated that deceased "of mortal wound aforesaid died" instead of, "of the mortal wound aforesaid then and there died," it appearing that deceased died two days after the assault. 3. Criminal law

1063(1)-Bill of exceptions not considered, where motions for new trial and in arrest were not filed until after judg. ment and sentence.

Where, after a conviction for murder in the first degree, it appeared that motions for a new trial and in arrest of judgment were not filed until after the judgment was entered and

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

(248 S.W.)

sentence pronounced, and therefore not in compliance with Rev. St. 1919, § 4079, the motions were in contemplation of law not filed, and consequently the purported bill of exceptions could not be considered.

upon the body of him, the said James A. Crabtree, giving to him, the said James A. Crabtree, then and there with the dangerous and deadly weapon, to wit, the pistol aforesaid, in and upon the body of him, the said James A. Crabtree, one mortal wound, of which mortal wound the said James A. Crabtree, from the 9th day of March, 1921, until the 11th day of March,

4. Criminal law 1117, 1118-Application for change of venue and for continuance must be incorporated in bill of exceptions to be re-1921, at the county aforesaid, did languish, and

viewed.

Application for change of venue and continuance are matters of exception, and must be incorporated in the bill of exceptions, in order to be reviewed by the appellate court.

languishing did live, on which said 11th day of March, 1921, the said James A. Crabtree, at the county of Stone aforesaid, of the mortal wound aforesaid, died, and W. E. Renfro, prosecuting attorney aforesaid, upon his oath of office aforesaid, does say that the said Stan

5. Criminal law 1063(1) Record proper only may be considered in absence of motionley Baird and Gip Webster, him the said James A. Crabtree, in the manner and by the means for new trial and in arrest. aforesaid, feloniously, willfully, deliberately, In the absence of a motion for new trial and in arrest of judgment, nothing but the rec-did kill and murder; against the peace and premeditatedly and of their malice aforethought ord proper can be considered by the appellate dignity of the state.

court.

Appeal from Circuit Court, Christian County; C. H. Skinker, Judge.

Stanley Baird was convicted of murder in the first degree, and he appeals. Affirmed. G. Purd Hays, of Ozark, Rufe Scott, of Galena, W. L. Vandeventer, of Hartville, and Robt. L. Gideon, of Forsyth, for appellant.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.

DAVIS, C. The prosecuting attorney of Stone county, by information filed on the

day of July, 1921, charged defendant and Gip Webster with murder in the first de gree. On a change of venue to Christian county, defendant was, on the 16th day of September, 1921, convicted and sentenced to life imprisonment, for that, on March 9, 1921, he mortally wounded by a pistol shot James A. Crabtree, who subsequently died.

The information, omitting caption and verification, is as follows:

"W. E. Renfro, Prosecuting Attorney."

On September 16, 1921, the jury returned in open court the following verdict:

"We, the jury, find the defendant, Stanley Baird, guilty as charged in the information, of murder in the first degree and assess his punishment at imprisonment in the state penitentiary for the term of his natural life.

"T. G. Ladd, Foreman."

The record proper shows the following entries relative to the judgment, sentence, motion for a new trial and motion in arrest of judgment, to wit:

"State of Missouri, Plaintiff, 109-v-1191 Stanley Baird, Defendant, Murder. Sentence and Judgment. Now, at this 16th day of September, A. D. 1921, same being the eleventh judicial day of the regular September term, 1921, comes the prosecuting attorney for the state, and also comes the defendant herein, in person, in the custody of the sheriff of this county, in the presence of his attorney and counsel in open court, whereupon the said defendant is informed 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, infòrma- 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 an assault and a dangerous and deadly weapon, to wit, a pistol then and there loaded with gunpowder and leaden balls, which they, the said Stanley Baird and Gip Webster, in their hands then and there had and held, at and against him, the said James A. Crabtree, then and there feloniously, on purpose and of their malice aforethought, willfully, deliberately and premeditatedly, did shoot off and discharge, and with the pistol aforesaid, and the leaden balls aforesaid, then and there feloniously, on purpose and of their malice aforethought, willfully, deliberately and premeditatedly, did shoot and strike him, the said James A. Crabtree, in and

having been found guilty as aforesaid, be confined in the penitentiary of the state of Missouri for a period of his natural life, from the 16th day of September, 1921, and that the sheriff of this county shall, without delay, remove and safely convey the said defendant to the said penitentiary, there to be kept, confined, and treated in the manner directed by law, and the said defendant, in the state penitentiary aforesaid, until the judgment and sentence of the court herein be complied with, or until the said defendant shall be otherwise discharged by due course of law. It is further considered," ordered, and adjudged by the court that the state have and recover of said defendant the costs in

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