State v. Hartman , 282 Mo. 680 ( 1920 )

This is an appeal from the judgment of the Juvenile Division of the Circuit Court of Jackson County.

A special appeal in this case was granted by one of the judges of this court on May 29, 1919, acting under the authority conferred by Section 2043, Revised Statutes 1909. Said statute, among other things, provides as follows: "Any judge of the Supreme Court or either of the courts of appeals, respectively, in cases appealable to said courts, upon inspection of a copy of the record, may grant an appeal by special order for that purpose at any time within one year next after the rendition of the final judgment or decision in the cause," etc.

From appellant's abstract of the record it appears that this is a suit under the Juvenile Court Act (Laws 1911, p. 177 et seq.), and was originally instituted in the Juvenile Division of the Circuit Court of Jackson County by the filing therein of a petition which in substance alleged that Aerial Hartman was a neglected child under the age of seventeen years, etc., and that she was suffering from the cruelty and depravity of her father.

A hearing was had upon this petition, at which hearing the father, and also the grandmother (the present appellant), appeared in the cause in person and by attorney.

After a hearing duly had the court entered a judgment; this judgment in substance recites that the court finds that said Aerial Hartman is a neglected child within the meaning of the statutes of the State and that the said father and grandmother are not proper persons to have the custody of said child; the child is made a ward of the Juvenile Court of Jackson County; the court further finds that one Gothard E. Henry and his wife are fit and proper persons to have custody of said child for the present; and remands said child to their custody until the further order of the court.

I. It was undoubtedly the theory of the learned (now departed) Brother who granted this appeal, that a constitutional question was involved which would confer jurisdiction of this appeal upon this court. But an examination of the record nowConstitutional presented for our review fails to present such aQuestion. question or in fact any question which would confer jurisdiction upon this court.

Appellant in her brief alleges that the court violated Section 1 of Article IV of the Constitution of the United States in that the court failed to give full faith and credit to the public acts, records and judicial proceedings of the State of Kansas.

It does not appear that a bill of exceptions was ever made out or filed in the case. There is no bill of exceptions contained in the record before us. The action of the trial court in determining the faith and credit due the alleged proceedings of a court of another state, as well as the motion to dismiss filed in the trial court, were matters of exception and could only be preserved for our review by being properly preserved in a bill of exceptions. So far as the present record discloses this was not done. It therefore follows that the constitutional question now urged in the brief has not been preserved in such a manner as will confer jurisdiction of this appeal upon this court. "Constitutional questions must not only be timely and properly raised, but, to confer jurisdiction on this court, they must be preserved for review." [Louisiana v. Lang, 251 Mo. 664, l.c. 666.]

II. It is suggested by the learned Attorney-General that this cause should be transferred to the Kansas City Court of Appeals under the provisions of Section 3938, Revised Statutes 1909, which provides that, "in the event of any case being sent from a lower Court on Appeal or writ of error to the wrong Court of Appeals or the Supreme Court, it shall be the duty of the court to which the case has thus been sent, immediately on such fact coming to its attention, to direct its clerk to forward the transcript therein, with the order of transfer, to the clerk of the proper court of appeals," etc.

After carefully considering the language of the above statute we are of the opinion that the word appeal as therein used should be limited in its meaning to an appeal granted by the trial court, and that it does not include special appeals granted by appellate judges under Section 2043, Revised Statutes 1909.

We think Section 2043, supra, when properly construed, means that the special appeal therein mentioned can be granted only by some judge of the court to which the case is applicable, and that under that statute a judge of one appellate court would have no power or authority to grant a special appeal to some appellate court of which he was not a member. If that be the correct construction (and we think it is), then the Kansas City Court of Appeals has acquired no right to review this case upon the special appeal granted by one of the judges of this court.

That being true the transfer statute (Sec. 3938, supra) can have no application.

It would therefore appear that upon the present record no appellate court has jurisdiction to review this case upon the special appeal heretofore granted. Such being the case it follows that the special appeal heretofore granted herein should be dismissed.

It is so ordered. All concur.