Miller v. Connor

• Citation: 157 S.W. 81
• Parties: MILLER et al. v. CONNOR.
• Decision Date: 31 May 1913
• Court: United States State Supreme Court of Missouri

157 S.W. 81

MILLER et al. v. CONNOR.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. COURTS (§ 231) — STATE COURTS — MISSOURI — APPELLATE JURISDICTION OF SUPREME COURT — FEDERAL QUESTION.

Where the issue is merely one of compliance with or construction of a federal statute, and does not challenge the validity of the statute, no federal question is raised so as to give the Supreme Court jurisdiction of an appeal under Const. art. 6, § 12, giving to that tribunal jurisdiction in cases involving the construction of the federal Constitution, treaties, or statutes.

2. COURTS (§ 231) — STATE COURTS — MISSOURI — JURISDICTION OF SUPREME COURT.

To bring an appeal within the jurisdiction of the Supreme Court on a constitutional question, it must appear that a constitutional construction was essential to the determination of the case.

3. COURTS (§ 231) — STATE COURTS — MISSOURI — JURISDICTION OF SUPREME COURT — CONSTITUTIONAL QUESTION.

To give the Supreme Court jurisdiction of a constitutional question the question must have been raised in the trial court and ruled on to the disadvantage of the party appealing.

4. COURTS (§ 231) — STATE COURTS — MISSOURI — JURISDICTION OF SUPREME COURT.

To give the Supreme Court jurisdiction, constitutional questions cannot be injected into a case for the first time in the appellate court by argument or brief of counsel for the purpose of giving jurisdiction, but it must be raised in the orderly course of procedure, and should be in the pleadings if due to be found there; but, if not, it must be raised at the first opportunity and kept alive.

5. COURTS (§ 231) — STATE COURTS — MISSOURI — JURISDICTION OF SUPREME COURT.

A constitutional question may in exigencies, be raised on rulings on the admission of evidence or in the instructions; but in those cases it must be kept alive in the motion for a new trial.

6. COURTS (§ 231) — STATE COURTS — MISSOURI — JURISDICTION OF SUPREME COURT.

In an action against a defendant to recover upon her liability as a stockholder in a foreign bank where a decree in a foreign state was objected to on several grounds, among which was a constitutional question, and the decree was excluded, judgment being rendered for defendant, no constitutional question is presented on which the Supreme Court can take jurisdiction of the cause; for it cannot be presumed, no ground being stated, that the decree was excluded on account of the constitutional objection, and furthermore, if it had been, the ruling was in favor of the party making such objection.

Appeal from St. Louis Circuit Court, George H. Williams, Judge.

Action by Alfred L. Miller and others against Florence E. Connor. From a judgment for defendant, plaintiffs appeal. On transfer from St. Louis Court of Appeals. Case retransferred.

Stephen C. Rogers, of St. Louis, for appellants. Walter H. Saunders, of St. Louis, for respondent.

LAMM, J.

This cause is transferred here from the St. Louis Court of Appeals; its mandate running on the theory that "a constitutional question — state and United States — is involved." No opinion accompanies the mandate, and we are left to feel after the constitutional question, if haply we may find it, precisely as did that court.

If our learned brethren had pointed out the constitutional questions and how they were "involved," in a constitutional sense, so as to give this court jurisdiction, it might have aided in persuading us to their view; but (being left to our own resources) we have come to a view presently announced.

Attending to the pleadings, the suit is to recover $214 from defendant. It is alleged that she held two shares of stock in the State Bank, a bank organized under the laws of and doing business in Colorado; that under Colorado laws shareholders are individually responsible for bank debts, contracts, or engagements, in double the par value of the stock owned by each; that in June, 1899, said bank made an assignment; that in 1905 plaintiffs, creditors of the bank, sued in the district court of the county of Denver in Colorado for an accounting and to ascertain the pro rata amount due by the respective stockholders under the double liability statute — the bank, its assignee and nonresident stockholders, including defendant, were made parties defendant; that said district court had jurisdiction; that the bank and its assignee, duly served, made default; that a certain defendant, Kipp, entered his voluntary appearance and filed an answer; but that no service was had on the other defendants who were nonresidents of Colorado. It is further alleged that in the Colorado suit judgment was rendered finding the total liability of the stockholders to be $160,000; that after converting the other assets of the bank into cash and collecting on the liability of the resident stockholders and applying same, the remaining unpaid debts aggregated the rise of $84,000; that defendant as a stockholder was decreed to owe 53½ per cent. of her total stock liability on said indebtedness, to wit, $214; that plaintiffs in that suit (plaintiffs in this) were appointed and authorized to represent all the creditors and to sue for their benefit in collecting amounts due on the stockholders' liability of nonresidents to be divided ratably among the creditors; that to that end plaintiffs were given full power and authority to settle and compromise said claims or suits for stock liability. (Note: If this peculiar decree is based on a Colorado statute, such statute was not pleaded or offered in evidence.) The petition then goes on to allege that defendant has paid nothing on said liability, though demand has been made. Having pleaded the Colorado statute making stockholders individually liable in double the amount of the par value of their respective stock holdings as aforesaid and that plaintiffs were prosecuting the action as trustees for the creditors, it was next alleged that defendant (by virtue of said Colorado statute and the decree, entered in said Colorado court on the 28th day of May 1907) was indebted in the said sum of $214, etc. Demurrers were filed and overruled; but they are not brought here, and no question is raised on them. Not only so, but defendant answered over by general denial and a plea of the five-year statute of limitations. Plaintiffs replied by a denial. So much for the pleadings.

At the trial a jury was waived, the evidence was heard and no instructions were asked. The motion for a new trial covered eight grounds, none of them of a constitutional complexion.

Turning to the trial, the following is the fashion of it: Plaintiffs offered a certified copy of the incorporation of the State Bank, which we will call "X." To the offer of X defendant objected on the ground the petition did not state a cause of action (quoting) "for reasons set out in the answer heretofore filed and in the amended demurrer raising constitutional questions." This objection was overruled. Plaintiffs next offered a certified copy of the bank's deed of assignment, which we will call "Y." This was objected to, but on no constitutional ground that we can discover. Not only so, but this objection was also ruled in favor of plaintiffs. Plaintiffs next offered a certified copy of the double liability act of the General Assembly of the state of Colorado, which we will call "Z." The defendant objected to the offer, but on no constitutional ground. Not only so, but the court also ruled in favor of plaintiffs in this instance and admitted the certified copy. Plaintiffs next offered a certified copy of the decree and findings of the Colorado court referred to in (and sustaining the averments of) the petition, which we will call "A." The objections made by defendant to A were as follows, in substance: (1) Because under the issues the proof was immaterial, irrelevant, and incompetent; (2) because the judgment was not properly...