This is a suit to recover upon a life insurance policy issued in favor of plaintiff upon the life of her husband for $1,000. The answer alleged that the policy was obtained by false and fraudulent representations, setting them out in extenso, and averred that after learning the truth of these matters defendant offered to return to the representative of the policy holder the premium paid upon said policy and tendered the amount of cash paid, and requested the cancellation and return of the contract because of the circumstances aforesaid, which was refused by plaintiff; that it made a similar tender in court, concluding with a prayer for equitable relief by annulling the contract of *508insurance. Issue was taken upon the answer. When the case was called for trial plaintiff demanded a jury. Defendant objected to the impaneling of a jury, insisting that by the pleadings the case was converted into a suit in equity, and excepted to a contrary ruling of the court. Upon the production of evidence the court ruled that the evidence to sustain the allegations of the answer was incompetent by reason of section 584-9 of the Revised Statutes of Missouri of 1889. At the conclusion of the trial the court gave a direction to iind for plaintiff, and refused, among others, the following instruction requested by defendant to wit:
“The court declares the law to be that section 5849 of the Revised Statutes is unconstitutional and void because it deprives the defendant of its property without due process of law, and denies to the defendant equal protection of the law of the land.”
It is apparent from the refusal of this instruction that a constitutional question was duly raised and presented on the trial of the cause, and is involved in a decision of the same on appeal. The defendant appealed from a judgment in accordance with the instruction of the court and presents the constitutional question raised by the refusal of its instruction, by its brief and argument'in this court.
This court has no jurisdiction to determine that question. State ex rel. Dugan v. K. C. Court of Appeals, 105 Mo, 299; Creve Coeur Ice Co. v. Tamm, 59 Mo. App. 57. The cause will therefore be transferred to the supreme court in accordance with section 3300 of the Revised Statutes of 1889.
All concur.