Lieber v. Heil

• Decision Date: 09 July 1930
• Docket Number: 28474
• Citation: 30 S.W.2d 143,325 Mo. 1148
• Parties: Louise Lieber, A Minor, By Her Next Friend, Mae Banks, v. Walter Heil, Appellant
• Court: Missouri Supreme Court

30 S.W.2d 143

325 Mo. 1148

Louise Lieber, A Minor, By Her Next Friend, Mae Banks, v. Walter Heil, Appellant

No. 28474

Supreme Court of Missouri

July 9, 1930

Transferred from St. Louis Court of Appeals.

Transferred to St. Louis Court of Appeals.

Oakley & Frank and Edward G. Davidson for appellant.

Frank J. Quinn and Frank Coffman for respondent.

Lindsay C. Seddon and Ellison, CC., concur.

OPINION

LINDSAY

The appeal in this case was allowed to the St Louis Court of Appeals. Upon the hearing, that court held that the question of the validity of a statute was in the case for determination; that appellate jurisdiction was in this court, and thereupon transferred the cause to this court.

The suit is one brought under the provisions of Sections 311 and 311a of the act approved March 31, 1921, Laws of 1921, pages 117 and 118. The plaintiff, a minor, and mother of a child born out of wedlock, sues by next friend. The petition closely follows the statute. It is asked that the paternity of the child in defendant, be established, and with full right of inheritance, in like manner as if the child had been born in lawful wedlock between plaintiff and defendant. The answer of the defendant is a general denial. Upon the trial, the court found in favor of the plaintiff, and entered a judgment or decree which in its terms follows the provisions of the statute.

Defendant's motion for a new trial makes numerous assignments of error, and among them is challenge of the validity of the statute upon which the action is founded, upon the ground that the act was passed in violation of Section 28 of Article IV of the State Constitution, and in violation of Section 53 of the article mentioned. The essential claim is that the title of the act is fatally defective. The motion in arrest of judgment challenges the sufficiency of the petition to state a cause of action, and also raises the question of the invalidity of the statute.

In the Court of Appeals, defendant raised the constitutional question, and asserted that the petition failed to state a cause of action. The plaintiff took the position that the constitutional question was not timely raised, and was not for consideration. The opinion of the Court of Appeals is devoted to a determination of the question of whether appellate jurisdiction was in that court, and, as a necessary preliminary thereto, a determination of the primary question of whether the constitutionality of the statute was in the case. (220 Mo.App. 896.) The Court of Appeals took the decision of this court, en banc, in McGrew v. Mo. Pac. Ry. Co., 230 Mo. 496, as applicable and controlling, and held that since the plaintiff's cause of action is founded upon the statute, the constitutionality and life of that statute are involved in the case from the start to the finish; and that defendant at any time, and in any court until the final end of the case, has the right to raise the question of the constitutionality of the statute, and make the objection that plaintiff's petition does not state facts sufficient to constitute a cause of action. The validity of the statute was not questioned in the trial court in any manner until the motion for a new trial was filed.

In this case appellate jurisdiction is not in this court, unless, there is a constitutional question in the case, and that depends upon whether it must be held, from the nature of the case, the question is in it "from the start to the finish," as it was expressed in the McGrew case, supra, and for that reason the question can be raised at any time and in any court, and affords the basis for determining appellate jurisdiction. Unless that be true the constitutional question is not in this case, under the uniform rulings of this court. The constitutional question cannot be held to be in this case, on the theory that the question was timely raised. To be within the ruling of a timely raising of the constitutional question it was necessary under the circumstances of this case that defendant raise the question in his answer. In Lohmeyer v. Cordage Co., 214 Mo. 685, the plaintiff's right of action was founded upon a statute which defendant did not challenge as unconstitutional, until he filed his motion for a new trial. It was held that it was necessary that defendant raise the question at the earliest stage in the proceeding admissible under the rules of good pleading and orderly procedure; that raising it for the first time in the motion for a new trial, was too late; that he should have put it in his answer and kept it alive. It was therefore held that the question was not in the case so as to give this court jurisdiction, and the cause was transferred to the Court of Appeals. To the general rule thus stated, it was said there was one exception, "viz.: where on the whole case some provision of the Constitution was either directly or by inexorable implication involved in the rendition of the judgment and decided against the appellant." The rule stated in the Lohmeyer case obtained before the decision in that case, and has ever since been followed in this court. [Hartzler v. Metropolitan St. Railway, 218 Mo. 562; Dahnke-Walker Milling Co. v. Blake, 242 Mo. 23; George v. Quincy, O. & K. C. Ry. Co., 249 Mo. 197; Speer v. Railroad, 264 Mo. 265; Strother v. Atchison, T. & S. F. Ry. Co., 274 Mo. 272; Joe Dan Market v. Wentz, 321 Mo. 943, 13 S.W.2d 641; Syz v. Milk Wagon Drivers' Union, 323 Mo. 130, 18 S.W.2d 441.] These were cases in which the jurisdiction of this court depended upon a determination of whether there was a constitutional question in the case, and in that respect like the case at bar. They are also cases wherein the cause of action was founded upon a statute, and wherein the defendant did not raise the constitutional question at the earliest opportunity in due course of orderly procedure, and it was held in all of them, that this court did not obtain appellate jurisdiction by the untimely raising of the constitutional question.

The Court of Appeals transferred the instant case to this court on the theory that the determination of the question was governed by what was said in McGrew v. Railroad, 230 Mo. 496. But, as was pointed out in the opinion by Ellison C., in the Syz case, supra, the McGrew case is distinguishable from a case like this. Speaking of the McGrew case, upon the point under consideration, it was said in the opinion in the Syz case, at page 444: "The question of the timely raising of a constitutional point as bearing upon appellate jurisdiction was not there considered." The same distinction was made in Strother v. Railroad, 274 Mo. 272. In the McGrew case, the appeal was allowed to this court, and no question as to the jurisdiction of this court, on appeal, was...