Where the only assignment of error does not involve any federal
question, the mere statement in the motion for new trial that the
judgment deprives plaintiff in error of his property without due
process of law, denies him equal protection of the laws, and is
contrary to the Fourteenth Amendment, without any allegation as to
why the judgment has this effect, no notice of which is taken by
the state court in denying the motion, does not properly raise a
federal question so as to give this Court jurisdiction to review
under § 709, Rev.Stat., even though the writ be allowed by the
presiding judge of the state court.
What facts constitute a common law marriage in a state is purely
a local, and not a federal, question.
This was an action of ejectment begun by Sophronia K. Keen in
the Circuit Court of St. Charles County against Ellis Keen, to
recover a tract of land in that county to which plaintiff averred
she was lawfully entitled. The petition was in the usual form of a
declaration in ejectment, and the answer a general denial.
Eli Keen was the common source of title, plaintiff claiming
one-half of the land, subject to the payment of debts, under § 2939
of the Revised Statutes of Missouri, upon the ground that she was
the widow of Eli Keen, who died in
Page 201 U. S. 320
1901, leaving, as plaintiff alleged, no children capable of
inheriting.
Defendant claimed to be the legitimate child of an alleged
common law marriage between Eli Keen, a white man, and Phoebe, a
negro woman.
There was judgment below for the plaintiff, which was affirmed
by the supreme court. 184 Mo. 358.
MR. JUSTICE Brown delivered the opinion of the Court.
The court deduced, as a conclusion of law from certain facts
found, that no marriage at common law had ever existed between Eli
Keen and Phoebe, a former slave of Eli's father, and that the
former died without leaving any child or children or other
descendants capable of inheriting from him, and hence that
plaintiff was entitled to recover possession of an undivided half
of the lands as his wife. No ceremonial marriage was claimed.
It is difficult to see any facts upon which to found our
jurisdiction of the case. No federal question appears in the
pleadings or in the testimony, a transcript of which is contained
in the record. The first glimmer of one appears in the motion for a
new trial in the circuit court, in which it is charged that the
judgment deprived the defendant of his property without due process
of law, and also denied him the equal protection of the laws,
contrary to the Fourteenth Amendment to the Constitution. But no
allegation is made as to why the judgment had this effect. No
notice was taken of the constitutional point in the opinion of the
supreme court, although the writ of error from this Court was
allowed by the presiding
Page 201 U. S. 321
judge. In the assignment of errors filed in this Court, the only
error charged is that, although the court below found there was no
common law marriage between Eli Keen and Phoebe, yet, in its
special findings, it found all the facts required to establish such
common law marriage between them, and that from the facts so found
the law presumed a null and void marriage between said Eli Keen and
Phoebe Keen, the issue of which was capable of inheriting, under
the statutes of Missouri. Rev.Stat. § 2918. No reference is made to
the Constitution of the United States in this connection. In
addition to this, the question what facts constitute a common law
marriage is purely a local one. We have searched the record for a
federal question, but have found none. The writ of error is
therefore
Dismissed.