Opinion
April 5, 1943.
1. — Appeal and Error — Bill of Exceptions. Where appellant filed a term bill of exceptions showing petition, motion to strike, ruling on motion and exceptions thereto but failed to file a final bill of exceptions preserving motion for new trial and exceptions to ruling of trial court thereon, review denied, though appellant by abstract presented, as if part of record proper, instructions given and refused, exceptions thereto, motion for new trial, overruling of motion and exceptions thereto.
2. — Appeal and Error — Bill of Exceptions. To render rulings of court on motion to strike and in giving and refusing instructions, reviewable on appeal, they must be preserved by a final bill of exceptions showing that all claimed errors in such rulings and exceptions thereto were called to the attention of the trial court in motion for new trial.
3. — Appeal and Error — Bill of Exceptions. For review on appeal, motion for new trial, ruling of court thereon and exceptions thereto must be preserved in bill of exceptions.
4. — Appeal and Error — Bill of Exceptions. The mere filing of a term bill of exceptions, showing the petition, motion to strike, ruling on motion and exceptions thereto does not suffice for review of an exception which is not presented to trial court in motion for new trial.
5. — Appeal and Error — Bill of Exceptions. Where appellant's motion for new trial, if correctly preserved, did not allege the ruling on motion to strike as ground for new trial, and made no mention of ruling of trial court thereon, the matter was not reviewable on appeal.
Appeal from Buchanan Circuit Court. — Hon. Emmett J. Crouse, Judge.
AFFIRMED.
Horace Merritt and W.C. Meyer for appellant.
Roy McKittrick, Attorney-General, and Covell R. Hewitt, Assistant Attorney-General, for Amicus Curiae.
No brief for appellant.
Alva F. Lindsay, David B. Lichtenstein, R. Bruce Snow and George L. Gisler for respondent.
(1) Plaintiff's contentions that the lower court erred in giving certain instructions and in refusing others and in overruling plaintiff's motion for new trial are not before this court because no final bill of exceptions has ever been prepared, allowed or filed. Electrolytic Chlorine Co. v. Wallace Tiernan Co., 328 Mo. 782, 41 S.W.2d 1049. (2) The small loan laws are not unconstitutional as being in violation of the constitutional provisions voiding local or special laws fixing the rate of interest. Gallert, Small Loan Legislation, pp. 18 to 112, N.Y., 1932, Russell Sage Foundation; Nugent, The Loan Shark Problem, 8 Law and Contemporary Problems (1941), pp. 3 to 14; Kelso, Social and Economic Background of the Small Loan Problem, 8 Law and Contemporary Problems (1941), pages 14 to 23; Hubachek, The Development of Regulatory Small Loan Laws, 8 Law and Contemporary Problems (1941), pages 108 to 146; Kelleher v. Minshull (Wash.), 119 P.2d 302; People v. Stokes, 281 Ill. 159, 118 N.E. 87; Harbison v. Stamer, 281 Ill. 450, 118 N.E. 94; Commonwealth v. Puder, 261 Pa. 129, 104 A. 505; Wheeler v. Remedial Loan Co., 261 Pa. 139, 104 A. 508; Badger v. State, 154 Ga. 443, 114 S.E. 635; Morgan v. Lowry, 168 Ga. 723, 149 S.E. 37, appeal dismissed, Morgan v. Georgia, 281 U.S. 691, 50 S.Ct. 238, 74 L.Ed. 1120; Family Finance Co. v. Allman, 174 Ga. 467, 163 S.E. 143; Cole v. Franklin Plan Co., 176 Ga. 561, 168 S.E. 261; Palmore v. Baltimore Ohio R.R., 156 Md. 4, 142 A. 495; State v. Hill, 168 La. 761, 123 So. 317, 69 A.L.R. 574; Sweat v. Commonwealth, 152 Va. 1041, 148 S.E. 774; Dunn v. State, 122 Ohio St. 431, 172 N.E. 148, aff'g 36 Ohio App. 170, 173 N.E. 22, appeal dismissed and certiorari denied Dunn v. Ohio, 282 U.S. 801, 51 S.Ct. 84, 75 L.Ed. 721; State ex rel. Downing v. Powers, 125 Ohio St. 108, 180 N.E. 647; People v. Blumenthal, 157 Misc. 943, 284 N.Y.S. 873; Gregg v. Personal Finance Co. of New York, 298 N.Y.S. 266; Richmond v. Conservative Credit System of New Jersey, 10 N.J. Misc. R. 14, 157 A. 446, rev'd on other grounds, 110 N.J. Law 73, 164 A. 563; Koen v. State, 162 Tenn. 573, 39 S.W.2d 283; Beasley v. Cahoon, 109 Fla. 106, 147 So. 288; Jannett v. Windham, 109 Fla. 129, 147 So. 296; 153 So. 784, aff'd Jannett v. Hardie, 290 U.S. 602, 54 S.Ct. 345, 78 L.Ed. 529; Ravitz v. Steurele, 257 Ky. 108, 77 S.W.2d 360; National Accounting Co. v. Dorman (Ky.), 11 F. Supp. 872, aff'd., 295 U.S. 718, 55 S.Ct. 835, 79 L.Ed. 1673; Cash Service Co. v. Ward, 118 W. Va. 703, 192 S.E. 344; Wrenn v. Portland Loan Co., 155 Or. 395, 64 P.2d 520; Financial Aid Corporation v. Wallace, 216 Ind. 114, 23 N.E.2d 472, 125 A.L.R. 736; Miller v. Schuster, 289 N.W. 702; In re Fuller, 15 Cal.2d 425, 102 P.2d 321; 69 A.L.R. 581; 125 A.L.R. 743; St. Louis Union Trust Co. v. State (Mo.), 155 S.W.2d 107; State ex inf. v. Southern, 265 Mo. 275, 177 S.W. 640. (a) The small loan law is not a local or special law because it applies to a class and to all within that class. State ex inf. v. Southern, 265 Mo. 275, 117 S.W. 640; State ex rel. v. Tolle, 71 Mo. 645, 650; State v. Walsh, 136 Mo. 400, 405, 37 S.W. 1112; State ex rel. v. Roach, 258 Mo. 541, 563, 167 S.W. 1008; State ex inf. v. Armstrong, 315 Mo. 298, 286 S.W. 705; Sec. 8150, R.S. Mo., 1939; Ex parte Berger, 193 Mo. 16, 90 S.W. 759; State v. Ware, 79 Or. 367, 154 P. 905; Kelleher v. Minshull (Wash.), 119 P.2d 302; People v. Stokes, 281 Ill. 159, 118 N.E. 87; Ravitz v. Steurele, 257 Ky. 108, 77 S.W.2d 360; State v. Hill, 168 La. 761, 123 So. 317, 69 A.L.R. 574; Cole v. Franklin Plan Co., 176 Ga. 561, 168 S.E. 261; State v. Wickenhoefer, 6 Pa. 120, 64 A. 273; Arts 2 and 3, Chap. 39, R.S. Mo. 1939; U.S.C.A., Title 12, Chaps. 2-12; Art. 10, Chap. 40, R.S. Mo. 1939; U.S.C.A., Title 12, Chap. 12, Secs. 1464-1468; Art. 8, Chap. 33, R.S. Mo. 1939; Chap. 134, R.S. Mo., 1939; Cavanaugh v. People, 61 Colo. 292, 157 P. 200; Waddell v. Traylor, 99 Colo. 576, 64 P.2d 1273; Reagan v. District of Columbia, 41 App. D.C. 409, writ of error den. (U.S.S. Ct., 1914); Beasley v. Cahoon, 109 Fla. 106, 147 So. 288; Dewey v. Richardson, 206 Mass. 430, 92 N.E. 708; Koen v. State, 162 Tenn. 573, 39 S.W.2d 283. (b) The small loan law is not a local or special law because the classification is reasonable. Ex parte Berger, 193 Mo. 16, 90 S.W. 759; Heller v. Lutz, 254 Mo. 704, 164 S.W. 123; State ex rel. Downing v. Powers, 125 Ohio St. 108, 180 N.E. 647; State v. Sherman, 18 Wyo. 169, 105 P. 299; State v. Ware, 79 Or. 367, 154 P. 905; Kelleher v. Minshull (Wash.), 119 P.2d 302; People v. Stokes, 281 Ill. 159, 118 N.E. 87; Wrenn v. Portland Loan Co., 153 Or. 395, 64 P.2d 520; Commonwealth v. Puder, 271 Pa. 129, 104 A. 505, aff'g, 67 Pa. Super. 11; Ravitz v. Steurele, 257 Ky. 108, 77 S.W.2d 360; State v. Hill, 168 La. 761, 123 So. 317, 69 A.L.R. 574; Cole v. Franklin Plan Co., 176 Ga. 561, 168 S.E. 261; State v. Wickenhoefer, 6 Pa. 120, 64 A. 273; In re Home Discount Co. (Ala.), 147 F. 538; State ex rel. Meals v. Hackmann (Mo.), 217 S.W. 271. (c) The small loan law is not a law fixing the rate of interest. Laws 1927, page 252; Art. 7, Chap. 39, R.S. Mo. 1939; Sherrell v. Brantley, 324 Mo. 497, 66 S.W.2d 529; People v. Stokes, 281 Ill. 159, 118 N.E. 87; Ravitz v. Steurele, 257 Ky. 108, 77 S.W.2d 360; Financial Aid Corp. v. Wallace, 216 Ind. 114, 23 N.E.2d 472, 125 A.L.R. 736; Wrenn v. Portland Loan Co., 155 Or. 395, 64 P.2d 520; State v. Hill, 168 La. 761, 123 So. 317, 69 A.L.R. 574; State v. Sherman, 18 Wyo. 169, 27 L.R.A. (N.S.) 898, 105 P. 299; Ex parte Alabama Brokerage Co., 208 Ala. 242, 94 So. 87; Spithover v. Jefferson B/L Assn., 225 Mo. 660, 125 S.W. 766. (3) The small loan laws do not violate the constitutional prohibition against acts authorizing or creating corporations or associations with banking powers without submission to the voters of the State. Auten v. U.S. Natl. Bank, 174 U.S. 125, 43 L.Ed. 920; People ex rel. v. Loewenthal, 93 Ill. 191; State v. Reid, 125 Mo. 43, 50; State ex inf. v. Lincoln Trust Co., 144 Mo. 562, 590; Allen v. Clayton, 63 Iowa 11; Dearborn v. Northwestern Svgs. Bank, 42 Ohio St. 617; Pape v. Capita Bank, 20 Kan. 440; State ex rel. Compton v. Buder, 308 Mo. 253.
Plaintiff sued to recover actual and punitive damages for the alleged wrongful and malicious invasion of his home and the seizure and conversion of his property. The trial before a jury resulted in a verdict and judgment for defendant, from which said judgment plaintiff took an appeal to the Supreme Court on the theory that a constitutional question was involved. The court ruled that no such question had been preserved for review and transferred the case to this court. The opinion is reported in 163 S.W.2d 1017. Pronouncements of the court in that opinion, incidental to the determination of the question of appellate jurisdiction, have made it obvious, if not conclusive, that the assignments of error made on this appeal are not properly here for review. This court is in effect furnished a ready-made opinion and a determination of questions that would dispose of the appeal and result in an affirmance of the judgment.
The character of the abstract furnished on appeal, the contents of the petition, the motion of defendant to strike out of the petition certain paragraphs by which plaintiff sought to raise a constitutional question, the action of the court in sustaining such motion, the filing of a term bill of exceptions thereto, that no final bill of exceptions preserving the motion for a new trial and exceptions to the ruling of the court thereon was filed, that plaintiff seeks to present the appeal on the record proper and sets out as a part of said record instructions given and refused, exceptions thereto, the motion for new trial, the overruling of said motion and plaintiff's exception, are all shown in the opinion to which reference has been made. A restatement of such facts would be useless iteration.
Appellant presents a formal assignment of errors. It covers only the alleged error of the court in sustaining the motion to strike out the allegations as to unconstitutionality of the law under which the respondent is doing business; the refusal of the court to grant instructions requested by plaintiff; and the giving of an instruction requested by defendant. The abstract, as heretofore indicated, sets forth the instructions given and refused, the motion for new trial, and the action of the court in reference to said instructions and said motion, and plaintiff's exception as though constituting a part of the record proper. The rulings of the trial court upon the motion to strike and in reference to the granting and refusal of instructions were all matters of exception. To render the rulings of the court in reference to such matters reviewable on appeal they must be preserved by a final bill of exceptions showing that all claimed errors in such rulings, and exceptions thereto, were called to the attention of the court in a motion for new trial. The motion for new trial, the ruling of the court thereon, and exception thereto must also be preserved in the bill of exceptions. The mere filing of a term bill of exceptions, showing the petition, the motion to strike, the ruling on the motion, and exception thereto, does not suffice for the review of an exception which is not presented to the trial court in the motion for a new trial. [Syz v. Milk Wagon Drivers' Union, 323 Mo. 130, 18 S.W.2d 441.] Furthermore, as pointed out in the opinion of the Supreme Court, the motion for a new trial, if correctly preserved, does not allege the ruling of the court on the motion to strike as a ground for said motion and no mention of such ruling is made.
No assignment of error is properly here for review. Section 1227, Revised Statutes Missouri 1939, provides that: "No exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court, except such as shall have been expressly decided by such court."
In the absence of a final bill of exceptions there is no basis for the assignment of errors made in this case. Appellant having failed to show reversible error, the judgment of the trial court should be arfirmed. The Commissioner so recommends. Sperry, C., concurs.
The foregoing opinion of BOYER, C., is adopted as the opinion of the court. The judgment is affirmed. All concur.