* Corpus Juris-Cyc. References: Appeal and Error, 3CJ, p. 710, n. 73, 74; Constitutional Law, 12CJ, p. 785, n. 63; p. 786, n. 71. This is a suit by Louise Lieber, a minor, by next friend, against defendant brought in the circuit court of the city of St. Louis, to establish defendant's paternity of a child born out of wedlock, and is bottomed upon sections 311 and 311a, Laws of Missouri 1921, page 118. The petition closely follows the statute, and prays a judgment and decree that defendant be adjudged the father of the minor child involved and that the child be given the name of Eugene Heil, with full right of inheritance as if born in wedlock.
The answer is a general denial.
There was a trial which resulted in a decree in favor of plaintiff, from which defendant has taken an appeal to this court.
Although the action is brought upon a statute, the court had difficulty in determining whether it was a suit in equity or an action at *Page 901 law, and throughout, the case seems to be tried in confusion in that regard.
The cause of action is bottomed squarely upon this statute, and counsel for respondent so concede. The cause of action grows out of this statute alone, and if the statute is invalid, of course no cause of action exists. The answer, observably, does not raise a constitutional question. Neither was a constitutional question raised during the trial. In the motion for new trial, however, it is specifically charged that this act of the legislature is unconstitutional, in that it violates section 53 of article IV, and section 28 of article IV of the Constitution of the State of Missouri. The labor of appellant's brief is almost entirely on the question of the constitutionality of the act. The assault made against the judgment is to the effect that this being a statutory action based upon an unconstitutional statute, no cause of action is stated in the petition and therefore the judgment should be destroyed on appeal.
Respondent's brief relies upon the proposition that the constitutional question was not timely made, in that it was not raised in the answer, and that neither was there an objection made to the introduction of evidence on the ground that the statute is unconstitutional, but that the constitutional question first appeared in the motion for new trial, which, it is said, is too late. And reliance is had upon the many cases in our jurisdiction which hold, generally, that the constitutional question must be presented to the trial court at the earliest possible moment and kept alive throughout, otherwise it will be waived. The leading case in our jurisdiction on this point, probably, is that of Lohmeyer v. Cordage Co., 214 Mo. 685, 113 S.W. 1108. We, of course, are quite familiar with that doctrine, and it can no longer be questioned that such is the rule in this State. However, there seems to be an exception to the general rule, and the instant case falls within the exception.
In the case of McGrew v. Railroad, 230 Mo. 496, 132 S.W. 1076, a case by the Supreme Court en banc, an exhaustive decision, it was distinctly and pointedly held that where plaintiff's cause of action is founded upon a statute and there is a judgment for plaintiff, the defendant may for the first time on appeal raise the question of the constitutionality and validity of such statute. The validity of the statute, said the court, is in the case at all times, because if it is not valid plaintiff has no cause of action at all, and defendant at every stage of the proceeding has a right to object, even for the first time on appeal, that the petition does not state a cause of action. While the Supreme Court in that case divided three and three and it was necessary to call in a special judge in order to reach a decision, both the majority and the dissenting opinion agree that the constitutional question may be raised for the first time in the Supreme Court *Page 902 where the sole cause of action arises from a statute and where there can be no recovery except by giving that statute force and effect. In that event, the court held that the constitutionality of such statute can be raised at any stage of the proceeding and in any court where the cause is pending at any time. This doctrine is pronounced in the majority opinion at page 511, and in the dissenting opinion at page 612, each citing authorities.
Accordingly, the constitutionality of this statute having been attacked in the motion for new trial below, and being most strenuously presented here on appeal, and the cause of action being based solely upon a statute which it is charged is unconstitutional, such question is in the case, and we, being without jurisdiction to decide such question, it is our duty to transfer the cause to the Supreme Court, which accordingly is now done.
Becker and Nipper, JJ., concur.