One of the essentials to the jurisdiction of the Supreme Court upon an appeal in any case is that the ground therefor must appear in the record and be preserved in such a manner as to show that it has not been abandoned. Thus asserted and preserved, the right to a review is established.
In the instant case the constitutionality of the ordinance in question was the sole basis of jurisdiction. While properly made and persisted in throughout the trial it is not mentioned directly or inferentially in the motion for a new trial. In its absence therefrom we are without jurisdiction and on this ground the writer dissented from the report of Commissioner DAVIS, which a majority of the court subsequently adopted as its opinion in the case.
In addition to a general familiarity with our procedure, both under the statute and the rules of court, I have supplemented that knowledge with a careful review of the cases in which the question of jurisdiction has been mooted and determined, and I find no instance in which jurisdiction has been asserted and maintained in which the sole ground for the same, however strenuously persisted in during the trial, has not been preserved in the motion for a new trial. Our most recent affirmative declaration of this rule appears in Macon County Levee Dist. v. Goodson, 14 S.W.2d 561. Other late cases are Keena v. Keena (Mo.), 3 S.W.2d 352; Morgan v. Willman (Mo.), 1 S.W.2d 197; City of Ferguson v. Steffen et ux., 300 S.W. (Mo. App.) 1039, 1041.
The rule under consideration is, however, so firmly established in our procedure and has heretofore been so uniformly enforced that a further discussion of the same seems unnecessary. It is enough, therefore, to say that whether a failure to observe the rule is due to inadvertence or a willful disregard of its binding force, we have nevertheless no jurisdiction in this case and it should be so held. *Page 1064
Equally elementary rules and as binding upon the limitation of our powers are, first, that parties to a suit cannot confer jurisdiction by consent (Toothaker v. Pleasent, 288 S.W. (Mo.) 38); and second, that it is the duty of the Supreme Court, within the defined limits of its power, to determine its jurisdiction, regardless of the fact that it may not have been challenged (Toothaker v. Pleasant, supra; State ex rel. Rucker v. Hoffman (Mo.), 288 S.W. 16). Jurisdiction, thus exercised, is promotive of justice; its attempted exercise in any other manner cannot be classified other than as an usurpation.