Browning v. Powers

Macfarlane, J. This action for slander was tried in the circuit court of De Kalb county, at the June term, 1893, in accordance with an act of the General Assembly of the State fixing the first Monday in June as the time for holding one of the terms of said court in said county. After a trial and verdict in favor of plaintiff for $650, defendant filed a motion in arrest of the judgment, charging as grounds therefor that said act was not passed in accordance with the forms required by the Constitution of the State, and was therefore unconstitutional. In support of the motion defendant offered in evidence the journals of the Senate and House of Representatives. The motion was overruled by the court and defendant appealed. Plaintiff files in this court a motion to transfer the appeal to the Kansas City Court of Appeals. Defendant asserts the jurisdiction of this court on the ground that the constitutionality of the act in question is involved. The question is, whether or not the constitutionality of the act could be brought in question after verdict, by a motion in arrest of judgment. [324] The appellate jurisdiction of the Supreme Court contemplates a review only of the matters submitted to, and examined and determined by the trial court. Hence it is well settled that this court has no jurisdiction of an appeal, on the ground that a constitutional question is involved, unless the question was raised in and submitted to the trial court. The Supreme Court has attempted to lay down no rule, as to the manner of raising such question, but it is said that “it should at least be fairly and directly presented by some of the methods recognized by the practice and procedure of the court.” Bennett v. Railroad, 105 Mo. 645. Arrest of judgment is defined to be “the act of staying a judgment, or refusing to render judgment, in actions at law and in criminal cases, after verdict, for some matter intrinsic, appearing on the face of the record, which would render the judgment, if given, erroneous or reversible.” 2 Ency. Pl. and Pr. 794, and authorities cited in note. “The question, raised by a motion in arrest of judgment, is a question of law, arising from the face of the record; judgments being arrested only for intrinsic causes, i. e., such only as are apparent on the record.” Gould on Pl. 460; Andrews Stephens, Pld. 185. These principles are elementary. Gilstrap v. Felts, 50 Mo. 428; Cox v. Moss, 53 Mo. 432; State to use v. Bonner, 5 Mo. App. 13; White v. Caldwell, 17 Mo. App. 691. It is therefore manifest that the constitutional question was not raised in the circuit court by any method recognized by the practice and procedure of the courts. The act fixing the time for holdingthe court in DeKalb county was presumptively valid, and nothing appeared upon the face of the record of the case showing any want of conformity to the requirements of the Constitution in its passage. The question could not be raised by motion in arrest of judgment. The jurisdiction is [325] therefore with the Kansas City Court of Appeals, to which it is ordered thát the case be transferred. Robinson and Brace, JJ., concur; Barclay, O. J., concurs in the result.