Polk v. State of Missouri, 4 Mo. 544

Statement of the case made, and opinion delivered by McGirk, Judge. This proceeding in the circuit court of St. Louis county, was a quo warranto, in the nature of an information at the relation of A. W. Manning. The information shows, that sometime in 1836, A. W. Manning was by the Mayor and Aldermen of the city, of St. Louis, appointed city attorney for the corporation; and that after-wards, the Board turned said Manning out of said office unlawfully, and put in his place Mr. Polk, the plaintiff in error.

In the court below, the plaintiff in this court pleaded that the said Manning was láwfully turned out of said office, and his plea shews specially the manner, and reason of doing it, and concludes by a prayer of judgment. The State replied to this plea, taking issue on the facts.

There was also, a second plea of like nature, and issue in The supreme com-t will not disturb the verdict of Im,-?,!!" asa jury, unless the matters of law byfsucheverd¡oted are properly brought before the court by a motion for a new trial in the court below Qn pieas the parties went to trial, and neither party requiring a jury,'the evidence was submitted to the court. The court found both issues for the State, and gave judgment of duster against Polk. The plaintiff took a bill of exceptions and spread out the evidence.

The bill of exceptions concludes by asserting that on the evidence so saved, the court gave judgment of ouster, &c. No motion was made for a new trial of the issue— no point of law was made to the court; but the objection is to the verdict of the court sitting asa jury. If a neW trial had been asked for and improperly refused, the error could be corrected here; but without that, we never have on the evidence disturbed a verdict.

In all cases where the matters in issue of fact and law are submitted to the court, the parties must separate the matters of law from the fact, and have the opinion of the court on the P°ints law. Then it can be seen on what ground the court decided the case. But in this case, if there be any error at all, we cannot know whether in law or fact; and if in law, it is but fair that that court should have had its attention expressly called to the point. If it had, the error, if any, might have been corrected. The rule as applied to this case, has been applied by this court at least to twenty cases heretofore.

Inasmuch as there is nothing to shew how and in what the court erred, this court is obliged to affirm the judgment. The same is affirmed with costs. Tompkins, Judge. I concur in the above opinion.