238 Mo. 184 | Mo. | 1911
Lead Opinion
On appellant’s motion to set aside the order transferring this'cause to the St. Louis Court of Appeals. Plaintiff obtained a judgment for $5000 against defendant, the cause came to this court by appeal, and it was by order of this court transferred to the St. Louis Court of Appeals on the ground that the amount in dispute was not sufficient to bring it within the jurisdiction of this court. Appellant now
The statute authorizing the judge or clerk in vacation to appoint a next friend for an infant has been on our books for more than seventy years and this is the first time its validity has ever been questioned, and in this case the question was not raised until the trial had progressed to the close of all the evidence and the cause was about to be submitted to the jury.
The appointment of the next friend was made August 20, 1909, and the suit filed that day; at the September term, 1909, defendant filed its answer, but said nothing about the Constitution or the statute. The cause was continued to the next term; at that term defendant moved for a continuance, but plaintiff consenting that the statement as to the testimony of the. absent witness be read in evidence, the application for a continuance was overruled. Then the defendant moved the court to require the plaintiff to submit to the physical examination by a surgeon to be appointed by the court, which motion was sustained and a surgeon was appointed. Then both sides announced ready and the trial began; not being finished that day it was carried over and progressed during the second day, and not being finished it was carried over to the third day, and then after all the evidence was in defendant asked leave to file an amended answer <£to conform to the proof,” and in that answer for the first time defendant challenged the validity of the statute. The only thing new in the amended answer was the plea
It has been held that a constitutional question may be raised for the first time in a motion for new trial, but that is so only when the motion for a new trial affords the first opportunity for raising it. Appellant relies on Bank v. Bennett, 138 Mo. 494, where it is said that the question may be raised for the first time in an amended motion for a new trial, but that can hardly be taken as a point decided, because the court held in that case that the amended motion was not filed in time and for that reason refused to review the action of the trial court overruling the motion. In Logan v. Field, 192 Mo. 66, to which appellant also refers, the point was raised for the first time in the motion for a new trial; but in that ease the verdict was returned by only nine of the jurors, and the point raised was that the verdict of less than twelve was unconstitutional; the question could not have been raised until the verdict was rendered. In Hartzler v. Railroad, 218 Mo. 562, the defendant attempted to raise a constitutional question in its motion for a new trial, but this court through Lamm, J., said: “The motion for a new trial was not the first door open for the question to enter and in our later decisions we have ruled that a question of such gravity must be raised as soon as orderly procedure will allow.” In Hanks
In the case at bar the record showed the defendant on its first page that the plaintiff was suing.by a next friend appointed by the clerk, and if defendant doubted' the authority of the clerk to make the appointment or the validity of the statute giving him that authority it should have raised that question then. The motion to vacate the order transferring the cause is overruled.
Dissenting Opinion
DISSENTING OPINION.
I doubt somewhat whether there is merit in the constitutional question suggested in this record, but there may be, and such merit might appear upon an investigation of the question. But be that as it may, I do not concur in the opinion overruling the motion to vacate our order sending this case to the Court of Appeals. The constitutional question is lodged in the record. Such question is both new and novel. If it was ever here before, such fact has escaped my notice. With a live constitutional question in the record, the jurisdiction is in this court. I do-not agree to the proposition that it was not timely raised. For these reasons I dissent from the opinion of the majority.