Walter L. Lacy Co. v. National Finance Corporation

• Decision Date: 09 July 1934
• Docket Number: No. 31610.,31610.
• Citation: 73 S.W.2d 747
• Parties: WALTER L. LACY CO. v. NATIONAL FINANCE CORPORATION.
• Court: Missouri Supreme Court

73 S.W.2d 747

WALTER L. LACY CO. v. NATIONAL FINANCE CORPORATION.

No. 31610.

Supreme Court of Missouri, Division No. 2.

July 9, 1934.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by the Walter L. Lacy Company against the National Finance Corporation. Judgment for plaintiff, and defendant appeals.

Transferred to the Court of Appeals.

Marley & Marley, of Kansas City, for appellant.

James B. Nourse and Milford W. Rider, both of Kansas City, for respondent.

TIPTON, Judge.

This case comes to the writer on reassignment. The respondent obtained a judgment in the sum of $200 against the appellant in the circuit court of Jackson county, Mo. From this judgment the appellant has appealed to this court.

The respondent's cause of action was based upon a default judgment rendered in common pleas branch of the circuit court of Jefferson county, Ky., at Louisville.

The appellant filed an answer denying that it had a place of business in the state of Kentucky, and denying that it had any officer or person in that state upon whom service or process could be served. The appellant also denied that it had at any time entered its appearance, either directly or indirectly in that case, and specifically alleged the want of jurisdiction of that court over the appellant and that the purported judgment was void and of no effect.

The foregoing is an outline of the facts and pleadings sufficient for an understanding of the question of jurisdiction on this appeal which is in this court only if a constitutional question is involved, and that question must, therefore, first be determined. Our jurisdiction has not been challenged by the parties, but nevertheless it is our duty to inquire into and determine that question.

There is no attempt to raise a constitutional question in the pleadings in this case. The only reference to the Constitution is in the appellant's refused instructions, which are as follows:

"III. The court declares the law to be that for the plaintiff to recover in this action would deprive the defendant of its property without due process of law, in violation of section 1 of the Fourteenth Amendment of the Constitution of the United States, and its finding must therefore be for the defendant."

"IV. The court declares the law to be that for the plaintiff to recover in this action would be putting a burden upon interstate commerce, in violation of section 8, article 1, of the Constitution of the United States, and its finding must be for the defendant."

These constitutional questions are not specifically mentioned in the motion for a new trial, nor are they mentioned in the briefs filed in this cause in this court.

A constitutional question must be timely raised in the trial court and kept alive in the course of orderly procedure in the pleadings, if due to be found there; if not, then at the first opportunity. Miller v. Connor, 250 Mo. 677, 157 S. W. 81; Strother v. Ry., 274 Mo. 272, 203 S. W. 207; Littlefield v. Little field, 272 Mo. 163, 197 S. W. 1057; Village of Grandview v. McElroy, 318 Mo. 135,...