Libber Ex Rel. Banks v. HeilLibber Ex Rel. Banks v. Heil
These are suits by trustees, executors, devisees or legatees, or there is involved the construction of a trust crеated by the will. In some of them are statements that “any party interested” may maintain suit to construe a will. These statements should be considered with reference to the facts of the particular case.
In the instant case plaintiff claims by descent from Peter Kirns. Defendants Peter, Manuel and Jose Requena claim under the will of Emilia Kirns. Plaintiff claims the real estate notwithstanding the will of Peter. By the second clausе of the will, Peter Kirns charged his estate with the payment of $25 a month to Mary Haugh. The trust thereby created terminated on her death. Therefore, no trust provision is involved. So the controversy between plaintiff and the beneficiaries under the will of Emilia Kirns involves the mere legal title to the real estate described in the petition. The estate of Peter Kirns has long since been administered and plaintiff had an adequate remedy at law. [Jane Estill et al. v. Erskine Ballew et al., 26 S. W. (2d) 778; Armor v. Frey, 226 Mo. 646, 126 S. W. 483; Hamer v. Cook, 118 Mo. 476, 24 S. W. 180.]
The chancellor was without jurisdiction to entertain the bill, and the judgment should be affirmed. It is so ordered. All concur.
Frank J. Quinn and Frank Coffman for respondent.
LINDSAY, C. The appeal in this ease was allowеd 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 ease for determination; that appellate jurisdiction was in this court, and thereupоn transferred the cause to this court.
The suit is one brought under the provisions of
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
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
In this ease 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 thе 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 constitutionаl question is not in this ease, 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 questiоn it was necessary under the circumstances of this cáse 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 procedurе; 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 cáse 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 bеen 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
The Court of Appeals transferred the instant ease 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 pagе 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 ease, the appeal was allowed to this сourt, and no question as to the jurisdiction of this court, on appeal, was raised; nor was that question considered in connection with the question of the right to pass upon the constitutional question. But, the question of appellate jurisdiction was expressly considered in the eases we have heretofore mentioned. In those cases it was directly considered, as dependent in determination upon thеre being a constitutional question in the case, and whether the constitutional question was in the case as a basis for appellate jurisdiction in this court, was decided in accordance with the rule stated in the Lohmeyer case. As pertinent in the discussion, suggestive of a distinction to be borne in mind, as well also as directly authoritative upon the question before us, we quote from the opinion of GRAVES, J., in George v. Railroad, supra, 249 Mo. l. c. 199: “Now in this ease it is conceded that the vital count of plaintiff‘s petition was based upon our statutes. With such concession it became the duty of the railway company to raise the question of unconstitutionality in the answer. This was not done. It should be remembered that this is not a case where the construction of the statute gives rise to the unconstitutionality thereof, but a ease where the statute is relied upon as the basis of the action, and thе defendant fails in his answer to plead that such statute is unconstitutional. Under the facts the constitutional question was not timely raised and the jurisdiction of this appeal is in the Kansas City Court of Appeals.”
That portion of the opinion in the McGrew case dealing with the question now before us, was criticized and disregarded by Division Two of this Court in Strother v. Atchison T. & S. F. Ry.,
We refer to the opinions in the Syz case and in the Strother case for further and more enlightening discussion, as well as for citation of cases presenting the question before us here.
Since this cause has bеen transferred, the statute in question has been held by this court to be void, as passed in violation of
The cause must be transferred back to the St. Louis Court of Appeals. Seddon and Ellison, CC., concur.
PER CURIAM:—The foregoing opinion by LINDSAY, C., is adopted as the opinion of the court. All of the judges concur.