Volume 116 — Missouri Reports

— George L. Walls, Esq., Special Judge. (1) The method employed in the Selection of twenty-five additional jurors to complete the .panel of forty-seven was contrary to act approved April 1, 1891, and illegal, and their verdict should be set aside and the case remanded for a new trial. Acts 1891, p. 173.

— Hon. C. A. Anthony, Judge. (1) For county purposes, not including taxes for paying valid bonded debt, the annual levy, in counties having $6,000,000, and not exceeding $10,000,000, taxable property, the rate shall not exceed forty cents per $100, and the rate shall be ascertained by the amount of taxable property therein at the last assessment for state and county purposes.

— Hon. B. E. Turner,, Judge, (1) The j>ass to Mrs. Ruddick and family must be considered as a gift or advancement from plaintiff to ber. The land never having reverted to plaintiff for want of an entry by him upon the same, would leave the pass the property of Mrs. Ruddick, and she alone could sue for refusal to renew the pass, or to pass her over the railroad.

- — Hon. Richard Field, -N Judge. (1) The court erred in sustaining defendant’s motion to strike out that part of plaintiff’s petition alleging mental and physical pain, distress and prostration, as the result of defendant’s failure to promptly transmit and deliver the message.

— Hon. Richard-Field, Judge. (1) The objection to the introduction of any evidence upon the ground that the petition did not state facts sufficient to constitute a cause of action should have been sustained. Burnside v. Fetmer/ 63 Mo. 107; Sheldon on Subrogation [1 Ed.], secs. 188, 160, 161,. 162; Scott v. Roberts, 67 Mo. 293; Los Angeles v. Signoret, 50 Cal. 298; Lambert v. Haslcell, 80 Cal. 611; Bliss on Code Pleading [1 Ed.] rule 2, p.282; Ibid. sec. 318.

Louis City Circuit Court. — Hon. L. B. Y allí ant, Judge. (1) It mattered not what the relation existing between plaintiff and defendant, this wiliful and malicious trespass created a liability of defendant to respond for the injuries so inflicted. Barker v. Railroad, 98 Mo. 53; Hallihan v. Railroad, 71 Mo. 118. Under evidence sustaining such allegations, even a trespasser may recover.

Loins Criminal Court. — Hon. James C. Nobmile, Judge. (1) The verdict of the jury is greatly against the weight of the evidence. There was no testimony in rebuttal. State v. Carver, 30 Pac. Rep, (Ore.) 315; State v. Lowe, 93 Mo. 517; State v. Nelson, 98 Mo. 115; Green v. State, 20 S. W. Rep. (Tex.) 712; McLeod v. State, 20 S. W. Rep. (Tex.) 719.

— Hon. J. W. Henry, Judge. (1) The court erred in admitting any evidence •under the pleading; it contains no allegation that defendant’s entry was wrongful or that the occupation became wrongful by matter subsequent to the entry. jRobertson v. Railroad, 18 Mo. App. 187; Edmonson v. Kite, 43 Mo. 176; Aull Savings Rankv. Aull, 80 Mo. 201; Cohen v. Kyler, 27 Mo. 122; Hubbard v. Railroad, b3Mo. 70.

Louis County Circuit Court. — Hon.. W. W. Edwards, Judge. (1) The owner of land is not required either to use it or to continually make assertion of his title. In the absence of an actual possession of some part of his land, his title carries with it the legal seizin and constructive possession. Douthitt v. Stinson, 63 Mo. 268; Turner v. Baker, 76 Mo. 343. (2) The seizin of land cannot be in abeyance or suspense. 1 'Washburn on Real Property [5 Ed.] top p. 67, sec. 96.

— Hon.- Jas. G-. Blair, Special Judge. - (1) Settlement with the county court is not a bar to a suit on the collector’s bond. Nolley v. .Callaway. Comity Court, 11 Mo. 447; State to use v. Smith, 26 Mo. 226; State to use v. Roberts, 60 Mo. 402; State to usev. Smith, 65 Mo. 464; Sidwell v. Birney, 69 Mo. 147; United States v. Echford, 1 Howard, 250. (2) The prosecuting attorney has authority to sue without the order of the county court.

Louis City Circuit Court. — Hon. D. D, ' Eisheb, Judge. Curtesy depends on the common law, and is recognized by the laws of Missouri. Tremmel v. Kleibolclt, 6 Mo. App. 549. Under the facts in this case the-appellant is entitled to curtesy in his deceased wife’s real estate, and, therefore, the demurrer to the evidence of plaintiff should be sustained.

— Hon. Richard Field, Judge. The trial court erred in refusing to permit the case-to be passed upon by the jury; this action was contrary to the mandate on the former appeal (98 Mo. 315). The following authorities all support the position here contended for.

— Hon. R. H. Field, Judge. (1) The evidence, both as to quantity and quality, preponderated in favor of appellants. Sixteen witnesses testified on their side, ten of whom were related by blood or marriage and six were neither interested or related. Plaintiffs’ evidence consisted mainly of conversations either with Mrs. Isley or with Clay King in her presence, and it is not probable that the witnesses fabricated their testimony.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The court erred in excluding testimony tending to show the motive which actuated Jungling in his proceedings conceded to be unlawful. (2) The court erred in instructing the jury not to assess plaintiff’s damages at more than one dollar, for defendant’s trespass upon his wearing apparel and bedding. (3) First.

J. M. San-dusky, Judge. (1) The husband may prefer his wife as a creditor and dispose of his property to her in satisfaction of a bona fide debt. Bartlett v. Umfried, 94 Mo. 530; Frost v. Steele, 48 N. W. Rep. 413; Hart v. Leete, 104 Mo. 317; Bank v. Croco, 26 Pacific Rep. 942; Laird v. Davidson, 25 N. E. Rep. 7.

.Appeal from St. Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) Wolf, Hayden and Reitz are sureties and are mot principals on tbe contract in question. While a surety may waive his rights as surety, yet this was not done by the contract involved in this ease. McMillan v. Parkell, 64 Mo. 286; Picot v. Signiago, 22 Mo. 593.

Certified from St. Louis Court of Appeals. (1) The circuit court had no power, authority or jurisdiction to grant said writ. The judge of the criminal court had exercised his judgment and discretion and passed upon said fee bill; if erroneous, that judgment can by proper means be reviewed and corrected in the appellate court, but the circuit court cannot substitute its judgment for the judgment of the judge of the criminal court.

— Hon. James Gtbson, Judge. (1) The court had no right to go behind the survey and plat and patent, and find the intention to convey any other land than that identified and described by such survey, plat and patents. Gassan v. Phillips, 20 How. 372. (2) The acts of congress controlling this case are as follows: Act of February hi, 1.805, ch. 14, p. 313, 2 U. S. Statutes at large; Act of April 24, 1820, ch. 51, p. 566, 3 U. S. Statutes at large.

— Hon. W. D. Hubbard, Judge. (1) Proceedings to collect taxes are ininviium and against common right and are limited by the constitutional provisions thereon and must haye the support of the constitutional power to tax. (2) A tax levied without a valid assessment j.s void. (3) It was error for the trial court to exclude the “assessment books,” etc. Laws 1872, sec. 212 (211) p. 127; Hziiber v. Pickier, 94 Mo. 386; McClcmahcm v. West, 100 Mo. 321.

Mandamus. (1) The relator is entitled to the charge of fees made by him under section 11, act of 1891 (Laws, p. 146). See Thomas v. St. Louis Co., 61 Mo. 547. (2) In 1877 the general assembly gave this fee to “sheriffs or other-officers who shall have in custody or under their charge any person undergoing examination preparatory to his commitment,” etc. See Laws of 1877, p. 256. (3) This fee is not given to the arresting officer only.

Louis City Circuit Court. — How. L. B. Valliant, Judge.! (1) The “sheet” was a privileged communication to subscribers who were creditors of plaintiffs, and the-court erred in allowing proof of publication to such subscribers. Odgers [2 Eng. Ed. 1887], p. 238; Newell on Defamation [Ed. 1890],p.393; Trussellv. Scarlett, 18 E. R. 214; Locke v. Bradstreet, 22 E. R. 771; Sunderlinv.

Louis Court of Criminal Correction. — Hon. E. A. Campbell, Judge. (1) The ordinance of the City of St. Louis in question is a valid one. State ex ret v. Beattie, 16 Mo. App. 131; Dillon on Municipal Corporations [4 Ed.], sec. 141.

Prohibition. (1) The notice of contest fails to indicate specifically and definitely the grounds on which the contestor intends to rely, and is too general in it's character and is insufficient to support the application to open the-ballot boxes and to examine and recount .the .ballots. McCrary on Elections, secs. 394, 400, 402, 404; Revised. Statutes, secs.4672,4778; Gummv. Hubbard, 97 Mo. 311 ; Gastello v. Circuit Court, 28 Mo. 259; Shields v. McGregor, 91 Mo. 547.

— Hon. James H„ Slover, Judge. (1) The court erred in giving plaintiff’s instruction 3, authorizing a recovery for loss of time, when there was no pleading therefor and no proof of the value of the time lost. First. Loss of time, as an element of damage, must be specially pleaded. O’Leary v. Rowan, 31 Mo. 117; Brown v. Railroad, 99 Mo. 310; Baldwin v. Railroad, 4 Gray, 333 Tomlinson v. Derby, 43 Conn. 562; Hunter v. Stewart, 47 Me. 419. Second.

Charles Circuit Court — Hon. W. W. Edwards, Judge. (1) The election of the defendant, Mary E. Harnett, was made out and filed in accordance with the provisions of 1 Revised Statutes, 1879, secs. 2190 -2194, and she is entitled to one-half of her deceased husband’s estate. 1 Revised Statutes, 1879, secs. 2190 -2194.

Louis Coumty Circuit Court. — Hon. W. W. Edwards, Judge. On change of venue to the circuit court of St. Louis county, the defendant, a negro, was convicted of having murdered James Brady, a policeman, in the city of St. Louis, by shooting him with a revolver. In conformity with the verdict the defendant was sentenced, judgment accordingly and he appeals to this court.

— Hon. W. I. Wallaoe, Judge. (1) The allegations of the petition and the evidence show such fraud and misrepresentation on the part of the Thompson Manufacturing Company and its promoters, in obtaining the plaintiff’s subscription and Ms property in payment for the same, as to entitle Mm to relief prayed for. The rule that, whatever fraud creates, justice will destroy, applies to subscriptions for stock in a corporation. Wells v. Jones, 41 Mo.

— Hon. R. H. Field, Judge. (1) The form of the action used in this case was not objected to by defendant and is expressly authorized by section 1821 of Revised Statutes. (2) The plaintiffs were not estopped from claiming damages done to their property on Liberty street because they did the grading in front of their lot; they were required to do it by ordinance or it would be done by the city at their expense.

(1) It is the law of this state, that where a conveyance is delivered to the recorder of deeds for the purpose of having the same recorded, it is a delivery to the grantee. ’ In all such' cases an assent and acceptanee by the grantee is presumed, where the instrument is on its face beneficial to the grantee, until an actual •dissent is shown. Major v. Hill, 13 Mo. 248; Pearce v. Banforth, 13 Mo. 360; Lumber Co. v. Anderson, 13 Mo.

'Appeal from St. Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) The trial court erred in subrogating respondent O’Reilly to the rights of his co-respondents Francis Fisher and John C. Hacker as to the interest which he claims to have paid them on their respective deeds of trust, Exhibits A, B, 0 and E. The evidence shows he was a mere volunteer.

— Hon. 0. H. S. Goodman, Judge. Plaintiff had a judgment in the circuit court, from which defendant appealed. The instructions referred to in the opinion of the division are the following: GIVEN BOE PLAINTIEE. “1.

— Hon. G. D. Bgbgess, Judge. (1) The fundamental error committed by the trial court, as shown by the rulings in the admission of evidence, the giving and refusal of instructions and other rulings, consists in the failure to recognize the distinction between a common law and statutory dedication for street purposes, as regards the rights of the abutting owner.

<p>1. Highway: dedication, evidence op. While the dedication of land as a highway for public use may be shown by the acts and declarations of the owner and need not be evidenced by writing, still an intention to dedicate must appear.</p> <p>2. -: -. Acts and declarations will not be sufficient evidence of a dedication unless they are of such a character as to show a dear purpose on the part of the land owner to devote the property to public use.</p> <p>3. -: -: acceptance by the public. There must be an acceptance by the public to constitute a common law dedication.</p> <p>4. -: way op necessity: presumption. While a grant of a right of way is presumed, to have been made wherever land has been sold which is inaccessible except by passing over the land of the grantor or by committing a trespass on land of a stranger, still such presumption does not arise where the person claiming such way of necessity has other access to the land.</p> <p>g, -; -. One cannot have such way of necessity because it is more convenient than the way he already has.</p> <p><3. -: -. So the necessity limits the duration of the right of way of necessity.</p> <p>7. Highway: prescription: tenant. One cannot acquire a prescriptive right of way over his own lands, or the lands of another which he occupies as a tenant.</p>

— Hon. H. C. O’Bryan, Judge. (1) The court erred in permitting the plaintiff to amend his petition on the trial of the case by causing to be inserted in the record the amendment he desired to be made, over the objections of the defendant, and in that the court refused to require plaintiff to file an amended petition setting out, and in the same, his ■entire cause of action in one pleading.

Joseph CRAVENS) Judge. (1) The tax book is the warrant or execution for the collector, and under which he acts, and must show all the jurisdictional facts to make it a valid warrant. (2) There must be an assessor’s book made out by the county assessor, the first part to be known as the real-estate book, and the second part to be known as the personal book, and then must be verified by the assessor. Revised Statutes, 1889, secs. 7552, 7553, 7571.

— Hon. W. I. Wallace, Judge. (1) Any failure to properly return the delinquent list shall in no way affect the lien of the state on delinquent real estate for the taxes unpaid thereon. Revised Statutes, 1889, sec. 7670; State ex rel. v. Schooley, 84 Mo. 454. Nor does it affect the rights of the state to enforce its lien. State ex rel. v. Schooley, 84 Mo. 454.

Louis City Circuit Court. (1) Under the facts stated in the petition, the plaintiff was entitled to redeem the real estate in question, so that the demurrer to the petition was improperly sustained. Revised Statutes, secs. 7079, 7080; Updike v. Elevator Co., 96 Mo. 160.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The petition states a good cause of action on'a breach of written contract set forth in the petition which was performed according to its terms by the plaintiff and the condition of its approval by the circuit court, as provided, was waived at the time of its execution,- and it was performed with such waiver from its date to the date of the breach without any objection on the part of the defendant.

Mandamus. ' (1) The Australian law is simply an amendment ingrafted upon the general election law directing the manner in which the election shall be conducted for the election of public officers,… Held: because not conducted under the Australian ballot law. The latter law applies to an election like the one here presented, under sections 1581 and 1948 of Revised Statutes of 1889.

Louis City Circuit Cou/rt. — Hon. ■ Jacob Klein,. Judge. (1) Defendant admits title of plaintiffs’ ancestor. It cannot then dispute that title, nor question the confirmation of the old board of commissioners, or its character, nor the authorized survey thereunder. Brown v. Brown, 45 Mo. 412; Boyce v. Papin, 11 Mo. 16; Archer v. Bacon, 12 Mo. 149; Lhrhardt v. Hogaboom, 115 U. S. 67.

(1) The petition alleges no facts which amount to false or fraudulent representations. Mere promises and assertions of hopes and beliefs do not constitute false or fraudulent representations. Bishop on Contract Law, secs. 324, 326;- Terry v. Ins. Co., 3 Mo. App. 595; Morrison v. Koch, 32 Wis. 254; Dawe v. Morris, 149 Mass. 188; Gage v. Lewis, 68 111. 604; Kerr on Fraud and Mistake [2 Ed.], 42.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) Defendant’s instruction at the close of the whole case in the nature of a demurrer to the evidence, should have been given.

Louis City Circtdt Court — Hon. L. B. Valliant, Judge. (1) The surveyor general and the recorder of land titles, the parties specified in the New Madrid act to make the locations thereunder, decided that the land covered by United States survey 2712 was land, the sale of which was authorized by law as specified by said act.

— Hon. C. W. Sloan, Judge. (1) On the death of William M. Macey, Charles and Joseph, his sons, each inherited half the land in controversy. Revised Statutes, 1845, p. 421, sec. 1.

— Hon. J. E. Raland, Judge. (1) The indictment in this case contains three counts, charging distinct offences, and is a valid and sufficient indictment. The verdict finds defendant “guilty” as charged in the third count, and amounts to an acquittal of the charge contained in the first count. Wharton’s Criminal Practice and Pleading, sec. 895; State v. Kattleman, 35 Mo. 107; State v. Whit-ton, 68 Mo. 91; State v. Cofer, 68 Mo. 120; State v. Grimes, 29 Mo.

— Hon. T. H. Bacon, Judge. (1) The court erred in the admission of the certified copy of the deed of trust mentioned on page twenty of abstract. No sufficient foundation was laid for its admission. Plaintiffs simply testified that thp original was not in his possession or under his control. It does not appear that plaintiffs made any effort to get the-original. West v. West, 75 Mo. 204. (2) Fraud must, be proved and must not be presumed.

<p>Jurisdiction of Supreme Court: misdemeanor: appeal: The supreme court has no jurisdiction of an appeal from a judgment of conviction of a misdemeanor, and whei'e, in such case, the appeal is ’ improperly taken to such court it will he transferred to the court of appeals having jurisdiction.</p>

— Hon. W. N. Evans, Judge. No exceptions having been saved by the defendant to the action of the trial court in overruling his motions for new trial and in arrest, this cause should be determined upon the record. No error appearing from the record, the cause must be affirmed.

— Hon. C. C. Bland, J udge. (2) There is nothing in the record to indicate the objectionable remarks of Y. M. Hines, who assisted in the prosecution; nor was the attention of the trial court called to the same at the time it is alleged they were made. Defendant will not be permitted to sit by and permit error, if error it be, take chances upon a verdict and be heard to complain after conviction. State v. Welsor (decided February 14, 1893, — not yet reported), and cases cited.

Louis Court of Criminal Correction.— Hon. J. R. Claiborne, Judge. The defendant was arrested upon an information lodged against him in the first district police court of St. Louis, for violating ordinance 16450 of the plaintiff city, relating to “Forest Park boulevard,” the sections of which ordinance material to the consideration of this case are as follows: “Section 1.

<p> Habeas Corpus. </p>

— Hon. J. M. San-dusky, Judge. (1) The purported bill of exceptions in this case cannot be considered. It was not filed within the time allowed by the court. The record nowhere shows any order of court extending the time of filing the bill of exceptions, or any action of the court whatever upon the preceding stipulation.

— Hon. Henry C. Riley, Judge. ■ (1) The alleged bill of exceptions in this case cannot be considered. It was not filed within the time allowed by the court, but after that time had expired. He was given until December 15, 1892, to file his bill of exceptions, and with the close of that day the record in his case closed. The judge, in vacation, could not at any time after December 15, 1892, extend the time for filing same.

— Hon. John W. YR>fford, Judge. (1) Defendant’s demurrer to the evidence should have been sustained. (2) The court erred in refusing instruction No. 2, asked by defendant. The question in the case was whether or not H. A. Eaunce was a fictitious name. This instruction submitted that question properly to the jury, and- should have been given. The court did not, by any instruction for the state, submit that question.

— Hon. J. H. Slover, Judge. (1). The admission of incompetent, irrelevant and immaterial evidence at the trial ought to operate a reversal.. (2) Plaintiff parted with the property in and the right of possession to the wheat by the delivery to the Imboden Commission Co. First. With the property: The vendor’s intention governs and is shown to have been to pass the property-r-(aJ By the delivery of the bill of lading.

Louis Circuit Court. — Hon. W. W. Edwards, Judge. (1) The right of the legislature to repeal defendant’s charter was reserved by the legislature. 1 Revised Statutes 1855, p. 371, section 7, Cooley on Taxation [2 Ed.], p. 72; State, etc. v. Assoc., 11 Mo. App. 570. (2) Section 3 of the charter granting exemption from taxation'was repealed by the constitution of 1865. Art. 11, Sec. 16; and if not repealed by it, it was repealed by the constitution of 1875.

Quo Warranto. (1) In order for a town to become a city of the fourth class, the first step to be taken required by the statute, is that the corporate authorities of the town shall elect to become a eity of the fourth class bypassing an ordinance or proposition to that effect. 1 Dillon on Municipal Corporations [4 Ed. ], 270.

— Hon. Jas. M. Sandusky, Judge. (1) The court erred in overruling defendants’ demurrer to the evidence. The state’s evidence does not prove nor tend to prove that Youngberger was a fictitious person, while the undisputed evidence on the part of the defendants was that he was not, but a person in being. The name of Youngberger being signed to the deed, the law presumes him to be a real person.

v Appeal from Miller Circuit Court. — Hon. E. L. Edwards, Judge. (1) Defendant’s demurrer to plaintiff’s evidence should have been sustained. Plaintiff’s story, as told upon this trial, is so extraordinary and improbable, that a verdict should not be permitted to stand upon it; and the fact that a verdict was rendered upon it, leads to the conclusion that the verdict was the result of passion or prejudice, or a total disregard of the instructions of the court.

— Hon. A. M. Woodson, Judge. (1) The court erred in overruling defendant’s objection to the introduction of testimony under plaintiff’s petition. It failed to state a cause of action. Littleton v. Richardson, 34 N. H. 179; Garrison v. Babbage Transportation Co., 94 Mo. 130; Russell v. Place, 94 U. S. 608; Packet Co. v. Sickles, 5 Wall (U. S.) 592; '2 Black on Judgment, sec. 617; Inhabitants v. Railroad,, 40 Mass. 34; Bobbins v. Chicago, 4 Wall (U. S.) 357.

— Hon. E. M. Hughes, Judge. (1) The defendants were in charge of fireworks with which they were giving a pyrotechnic display; were in the heart of a populous part of the city, and streets immediately surrounding them were thronged with men, women and children. The law, therefore, out of regard for human life and safety, demanded great care of them. They were bound to exercise more than ordinary care.

<p>Certiorari: supreme court practice. Where, on application to the supreme court for a writ of certiorari, it appears that the circuit court has the power to issue the writ and the cause is not one of more than ordinary importance, the writ will he denied.</p>

— Hon. Henry M. Ramey, Judge. '. (1) The personal judgment against Abbott rendered by the Harrison circuit court in Kentucky, 1875, was not barred when sued upon, May, 1888, in the Buchanan, circuit court, Revised Statutes, Missouri, 1889, sec. 6796. (2) The plaintiff’s judgment May 19, 1889, was a valid judgment of a court of general jurisdiction, and cannot be assailed collaterally.

— Hon. C. W. Sloan, Judge. (1) The court erred in overruling the motion to dismiss the interplea. (2) The trust deed from the Electric Springs Railway Company to Theodore Youngs, trustee, and the bonds secured thereby, was improperly admitted, (a) Because there was no showing that the statutory conditions authorizing their issue had been complied with. Constitution, 1875, art. 12, sec. 8; Revised Statutes, 1889, secs. 2499, 2500; State exrel. McGrath, 86 Mo. 239.