Wisman v. Fire Lightning Ins. Co. , 230 Mo. App. 489 ( 1936 )

ON MOTION FOR REHEARING. It is claimed that it was the duty of this court to raise suasponte the point that the petition failed to state a cause of action and that we should have noticed the point although it was not properly presented in appellant's brief.

It is always the duty of a court to raise of its own motion a question of lack of jurisdiction over the cause (15 C.J., p. 850). Consequently, where the petition is fatally defective the question will be raised sua sponte by the court. However, that situation is not present in this case. [Ricketts v. Hart,150 Mo. 64; Williams v. Stroub, 168 Mo. 346, 354; State ex rel. v. Scarritt, 128 Mo. 331.]

We find the cases of Greer, Admr., v. Railroad,173 Mo. App. 276 and Macey-Harris Harvester Co. v. Fed. Res. Bank of K.C.,48 S.W.2d 158, cited by the appellant not in point.

The motion for a rehearing is overruled.