Volume 123 — Missouri Reports

— Hon. H. M. Ramey, Judge. The correctness of the abstract in this case, prepared by counsel for plaintiff is virtually conceded by counsel for defendants, who refer to the same from; time to time, in verification of their statement.

— Hon. A. M. Woodson, Judge. (1) The description in the deeds is the same as that by which the property had been conveyed by the previous owners. It also appears that these parts of lots were inclosed in one inclosure, and used as one property.

— Hon. Richard Field, Judge. Equitable proceeding instituted by plaintiffs as the the heirs of John Sappington who sought to have a certain fund in the hands of the defendant trustees brought into court, an accounting had and a decree made declaring that the trust hereinafter more particularly mentioned, has ceased and determined, and ordering that the fund with its accumulations be distributed among said heirs.

Mandamus. (1) The position taken by the respondent is that . the increase in the relator’s salary made by the ordinance of 1893 is void because it is prohibited by section 8 of article 14 of the constitution of this state.

Quo Warranto. (1) Quo warranto is tbe proper remedy when persons have usurped or are unlawfully exercising tbe franchises of a corporation. R. S. 1889, sec. 7390; St. Louis v. Shields, 67 Mo. 247; Cooley on Const. Lira. [3 Ed.] sec. 254. (2) Section 7390, supra, confers express authority upon the attorney general to institute such proceedings in the supreme court, and it is not necessary to obtain the consent of the court before filing the information.

<p>Corporation: abuse of franchise: quo warranto. Where the state assails a corporation by quo warranto for illegal acts, it must charge and prove the abuse or misuse of its franchises relied upon as grounds of forfeiture.</p>

— Host. James H. Lay, Judge. (1) The intent of the framers of the constitution should govern in interpreting its provisions. Cooley’s Const. Lim. [6 Ed.], 69. (2) 'In determining such intent it is proper to consult the status of public affairs at the time and the causes which led to its adoption. (3) The constitutional limitation prescribed in section 11 of article 10 applies to townships as fully as if in terms they had been designated therein.

— Hon. Richard ■ Field, Judge. This proceeding bad its origin in a judgment rendered January 26, 1876, in the Pettis circuit court, in favor of plaintiff and against the Texas & Atlantic Refrigerator Car Company.

— Hon. Rudolph Hirzel, Judge. (1) The plaintiff’s objection to the introduction of any evidence, because the petition does not state a cause of action, should have been sustained. Rutledge v. Railroad, 110 Mo. 312; Shearman & Redf. on Negligence, secs. 25, 26; Harlanv.

— Hon. Jas. M. Sandusky, Judge. (1) According to Prance’s evidence these deeds can not be held to be mortgages for the purpose of this suit, and are void as to the defendants. Prance never-agreed to advance anything on them, nor was he under-obligations to do so. -They were not mortgages when delivered, and, at most, were only to become such on contingencies to be voluntarily performed by Prance in the future.

<p>Appeal from Pettis Circuit Court. — Hon. Riciiaed. Field, Judge.</p> <p>The appeal was rightfully allowed. Morse v. Railroad, Oct. term, 1877, of this court (unreported); Iron Co. v. Meeker, 109 U. S. 184; Lewis, v. Campean, 14 Mich. 458; Taylor v. Sweet, 40 Mich. 739; Stocatv. Ranks, 10 Wall. 583; Stale v. Field, 37 Mo. App. 83; Neall v. Hill, 16* Cal. 145. The statutes plainly define what are final judgments and what are interlocutory orders. Section 2208, R. S. 1889. Section 2085 provides what a motion shall contain, and is as follows: “All motions shall be accompanied by a written specification of the reasons upon which they are founded; and no reason not specified shall be urged in support of the motion.” In this case no motion for the appointment of a receiver was filed. A proper construction of section 2246, Session Acts, 1891, p. 70, would authorize an appeal. Nail Go. v. Flanders, 12 Wall. 130; Morris v. Cotton, 8 Wall. 507;, Nelson v. Leland, 22 How. 48.</p> <p>(1) The ri&ht to appeal is wholly statutory, and if the appellants are entitled to appeal in this cause, the right must be founded on some provisions of our statute authorizing it. Macke v. Byrd, 109 Mo. 487; State v. Foivler, 108 Mo. 469; In Re Big 'Hollow Road, 111' Mo. 329; Aldridge v. Spear, 101 Mo. 405; Kendrick v. Cole, 46 Mo. 86; Snoddy v. Pettis County, 45 Mo. 362. This cause does not fall within the provisions of our statute relating to appeals. (2) The judgment was not a final one, but merely an interlocutory decree and is not one from which an appeal, will lie. ■ Neither the appointment of a receiver, nor the refusal to discharge him before final decree involves the determination of any right between the parties. Hull v. Caughey, 60 Md. 104; Adams’s Equity, p. 355, note 3. (3) A final judgment from which an appeal will lie under the statute, must be one disposing of the main case, so far as there is power in the trial court to decide the questions presented by the pleadings. Black on Judgments, sec. 21. See, also, as applicable to this case, the following: Williams v. Feed, .60 Am. Dec. 427; Dufornv. Lange, 54 Fed Rep. 913; Boswick v. Brinkenhoff, 106 U. S. 3; Grant v. Ins. Co., 106 IT. S. 429; Forgay v. Conrad, 6 How. 204. (4) There is no finding as to the interest or right of plaintiff or defendant in the case at bar and nothing is fixed or determined as it should be, and will be, on the final hearing. Railroad v. Varner, 10 Ohio St. 622; Railroad v. Sloan, 31 Ohio St. 9; Rolling Mill Go. v. Railroad, 1 Pac. Rep. 274; Hottenstein v. Conrad, 5 Kan. 249; Boyd v. Cook, 20 Pac. Rep. 477; Emeric v. Alvardo, 65 Cal. 624; Wood v. Brewer, 9 Ind. 86; Fuller v. Adams, 21 Ind. 559; Hull v. Caughey, 6 Atl. Eep. 591; Ellicott v. Ins. Co., 7 Gill. 320; Kerr on Receivers, p. 139; Hastie v. Aiken, 67 Ala. 313; Thompson v. Brooks, 76 Ya. 160; Miller v. Lehman, 87 Ala. 519; Coates v. Cunningham, 80 111. 468; Holden v. McMakin, 1 Pars. Eq. Cases (Pa.), 287.</p>

— Hon. E. M. Hughes, Judge. (1) The court erred in excluding evidence offered by plaintiff. The communications of Mrs. Green to Mr. Jesse were not privileged, because she was contemplating wrongdoing. R. S. 1889, sees. 3648, 3660, 3661; State v. McChesney, 16 Mo. App. 259, and cases cited; Charlton v. Coombs, 32 L. J. chap. 284, cited at page 103; 7 American and English Encyclopedia of Law.

Louis City Circuit Court. — Hon. D. D. Eisher, Judge. This case came to the court in banc from the first division, upon the following opinion, which states all the facts necessary to a decision of the case, viz: (1) Sections 1245 and 1246, Revised Ordinances, City of St. Louis, Missouri, were competent and material under the pleadings, as proof of a violation of the ordinances was competent evidence in support of the allegation of negligence.

<p>1. Trust, Action to Establish: petition : fraud. In an action to have defendant declared a trustee for plaintiff as to land purchased by defendant at a foreclosure sale under a deed of trust, the petition alleged that the plaintiff had an equity of redemption in the property; that at her request defendant agreed to buy it in for her; that before the sale he consented to do so; that he bought it at a price greatly less than its value; that she relied on his promise; that after the sale he denied her rights and cast her off. Held, that the petition sufficiently charged fraud and stated a good cause of action.</p> <p>2. -: SALE UNDER DEED OF TRUST: STATUTE OF FRAUDS. An agreement made by a purchaser at the foreclosure sale with the grantor in a'deed of trust that he will buy in the property for such grantor is not within the statute of frauds.</p> <p>3. •— -: -: equity. Such purchaser will in equity be deemed a trustee for the grantor.</p>

— Hon. James Gibson, Judge. (1) Actionable negligence is the inadvertent failure of a legally responsible person to use ordinary care under the circumstances, in endeavoring to perform a noncontractual duty implied by law, which failure is the proximate cause of injury to the person to whom the duty is due. 16 Am. and Eng. Encyclopedia of Law, p. 389; Bishop on Noncontract Law, sec. 436; Wharton on Negligence, sec. 3; Shearman & Red-field on Negligence, sec. 3.

— Hon. Rudolph Hirzel, Judge. (1) The partition deed prima facie conveyed the title to the property therein described; therefore the court erred in excluding it when first offered by defendant, and in compelling the defendant in the first instance to produce the record on which it was based. R. S. 1889, secs. 4954, 7166, 7169; Howard v. Thornton, 50 Mo. 291.

— Hon. Thomas H. Bacon, Judge. This is a suit in equity, in which there was a finding for defendant, and judgment accordingly in the trial court.

Charles Circuit Court. — Hoh W. W. Edwards, Judge. (1) The bill of exceptions was filed within time. Besides, the fact that the delay was occasioned wholly by counsel for the respondent estops him from complaining. City v. Kleuh, 27 Neb'. 617; Meyer v. Fagan, 51 N. W. Rep. 753; Kaives v. People, 129 111. 123.

— Hon. John W. Henry, Judge. (1) This action is brought to set aside an alleged conveyance on the ground of fraud and undue influence. The facts shown by the evidence entitle plaintiff to the relief claimed. Yosti v. Langhorn, 49 Mo. 594; Garvin’s Adm’r v. Williams, 44 Mo. 465; Cadwallader v. West, 48 Mo. 483; McClure v. Lewis, 72 Mo. 314; Rallv. Knapp ehberger, 97 Mo. 509; Millie v. Sullivan, 11 Mo.

(1) The decision of the supreme court in this cause is res adjuclicata only as to matters before that court; on appeal from the judgment of April 7, 1890, and not-as to any matters or rights, which have accrued .to defendant since said judgment was rendered and appealed from.

(1) It was declared by this court at an early day that “the law may be considered as settled that a corporation may convey its property in trust to pay its debts, and, like an individual, may prefer one creditor over another.” St. Louis v. Alexander, 23 Mo. 483, 524; _Foster v. Mill Co., 92 Mo. 79; Hutchinson v. Creen, 91 Mo, 367; Bank v. Iron. Co., 97 Mo. 38; Coates v. Donnell, 94 N. Y. 168.

<p>1. Contributory Negligence: ordinary care: presumption: instruction. Where there is evidence before the court tending to show plaintiffs contributory negligence, it is error to instruct the jury that the law presumes that plaintiff was exercising ordinary hare at the time of his injury.</p> <p>2. -: evidence: admissions. Testimony of admissions of facts by a party, from which his negligence may fairly be inferred, is sufficient to justify an inference or finding of such negligence.</p> <p>3. Practice: jury: credibility op witnesses. The question of the credibility of testimony is for the jury.</p> <p>,4. Negligence, General Plea of: waiver. A general plea or allegation of negligence is sufficient as against an objection first raised upon appeal.</p> <p>5. Supreme Court Practice: instruction: res non judicata. The fact that an instruction, given on a former trial, was not questioned on appeal, does not estop a party from objecting to the same instruction at a latter trial and obtaining a review of it on a subsequent appeal.</p> <p>6. -: waiver. A party may waive his right to a reversal of a ruling on a particular point by not raising it; but such waiver does not necessarily amount to a consent to the same ruling at a latter trial.</p> <p>7. -: error: presumption op prejudice, !Error is regarded as prejudicial unless affirmatively shown to be harmless.</p> <p>8. Practice: .personal injuries: personal examination op plaintiff: evidence. Where plaintiff exhibits his injured leg to the jury on a trial as to the cause of the injury, it is error to refuse permission to the adverse party to have the leg examined in open court by experts, with a view to introduce their testimony as to the character of the. injury and its probable permanency. Per Macfarlane, J., Black, C. J., and Brace, J., concurring.</p>

— Hon. C. H. S. Goodman, Judge. (1) - Fisher is no name, and the advertisement, order of publication and judgment ate fatally defective. Troyer v. Wood, 98 Mo. 481; Skelton v. Sackett, 91 Mo. 379. (2) Publication of notice must be for four weeks, and not four insertions. State ex rel. v. Dicker, 32 Mo. App. 620, and the authorities therein cited; R. S. 1889, see. 2028. (3) The court must be satisfied that the defendants are nonresidents, or that process can not be served.

— Hon. James M. Sandusky, Judge. (1) Assessments of personal property are made by calling upon and obtaining list of property from tax payer, or by leaving list for him to fill. All property owned June ,1 of each year shall be liable for-taxes thereon for ensuing year. R. S. 1879, secs. 6685, 6716; R. S. 1889, sees. 7531, 7569.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The replication of fraud against a plea of release is proper only in a case -where the release is pleaded in a, plea of puis darrein continuance. 1 . Chitty on Pleading [16 Am. Ed.], p. 608; Pomeroy,. Rem. and Rem. Rights, see. 650; 3 Blackstone’s Com., 316; Stephen on Pleading [Tyler’s Ed.], p. 97; 18 Am. and Eng.

<p>1. Constitution: local and special laws : greene county criminal court. Neither the aet of the legislature of April 26, 1889, establishing the Greene county criminal court, nor the aet of April 27, 1893, separating the clerical' duties of the criminal court from the office of the circuit clerk is a local or special law within the constitutional prohibition against local or special laws (Const., art. 4, sees 53, 54).</p> <p>2. - — -. The question whether a law is a local or general one is to be determined by the generality with which it affects the people as a whole, rather than by the extent of the territory over which it operates and if it affects generally all persons within its operation, it is neither a general nor a special law.</p> <p>3. --: -: notice. The publication of the notice required by the constitution (art. 4, sec. 54) of the proposed passing of a local or special law does not make the law local or special.</p> <p>4. --: -. Where a specific grant of power is conferred by the constitution on the legislature as to any particular subject, an aet passed in pursuance of such grant will not be deemed special or local legislation.</p> <p>5. -: criminal courts. Constitution article 6, section 3, which provides that “the general assembly shall have no power to establish criminal courts, except in counties having a population exeeding fifty thousand” is a sufficient recognition of the right to establish such courts in counties having a population exceeding fifty thousand.</p> <p>6. --: presumption. Acts of the general assembly are presumed to be constitutional until the contrary is clearly shown.</p>

(1) The court having found that the property insured was totally destroyed, should have assessed the damages at the amount-of insurance written in the several policies. R. S. 1879, sec. 6009; Amplemanv. Ins. Co., 35 Mo. App. 308; Ampleman v. Ins. Go., 35 Mo. App. 317; Barnard v. Ins. Co., 38 Mo. App. 106; Reilly v. Ins. Co., 43 Wis. 388; Thompson v. Ins. Co., 45 Wis. 388; Oshkosh Co. v. Ins. Co., 71 Wis. 454; Ins. Co. v. Leslie, 24 N. E. Rep. (Ohio) 1072; Emery v. Ins.

Mandamus. (1) The appropriation in the form in which it was made was a legislative determination that the appropriation was necessary; that there were insane persons in the St. Louis insane asylum who belonged to the state outside of the city of St. Louis, and for whose support it was proper, for the state to provide. The legislature did not appropriate money for the support of the St. Louis insane asylum.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The court erred in excluding the testimony for plaintiff tending to show that for six months before the time plaintiff was injured, it was the almost daily practice of the defendant company to leave its train of cars on the track upon which they were the day that plaintiff was injured, across Montgomery street, and extending north and south of it for a length of six blocks, for a long time each day, without any…

— Hon. O. O. Bland, Judge. (1) This case is clearly distinguished from the decisions of this court, which hold that where a husband invests his wife’s money in real estate he is held as a trustee for her; for in this case in the purchase of the original tract he put in $700 of his own means.

(1) Wayne county, by its contract, and performance thereof by the railway company, and by the acts and conduct of its officers relating to such contract and its performance, and to their inducing and encouraging the railway company to change its first and adopted route through that county, to a second and more difficult route, is, by reason of the aforesaid contract and its performance and the acts and conduct of its officers as aforesaid, estopped from claiming that such…

Louis City Circuit Court. (1) The act of 1893 in question violates section 7 of article 9 of the state constitution. 1 R. S. pp. 92, 303; Laws, 1893, p. 59; 2R. S. p. 2123, sec. 18; Statev. Miller, 100 Mo. 439; State v. Bell, 24 S. W. Rep. 765.

— Hon. M. G. McGregor, Judge. (1) Usually the question of contributory negligence is one of fact and is left to the jury under suitable instructions. Beach on Contributory Negligence [2 Ed.], sec. 448, page 566; Smith v. Railroad, 61 Mo. 588; ScoviUe v. Railroad, 81 Mo. 434; Reilly v. Railroad, 94 Mo. 600. (2) When the character of the facts are such that different conclusions may be drawn from them, it is a question for the jury.

Certiorari. (1) The writ of certiorari was properly issued in this case. It is a writ issuing from the supreme court to an inferior court, or officer exercising judicial powers, whose proceedings are summary, commanding the latter to return the records of a cause depending before it to the superior court. 3 Am. and Eng. Encyclopedia of Law, p. 60.

— Hon. D. P. Stbatton, Judge. (1) The land sought to be charged with the special tax is a part of the Missouri, Kansas & Texas railway grounds in Nevada. This block 32, as originally described, was acquired as a part of the right of way and yards of the railroad in that city, and has ever since been used in connection with the other lands for the purposes of the railroad in the transaction of the business of a common carrier, and it is, therefore, part of a public highway.

— Hon. O. H. 8. Goodman, Judge. . By this equitable proceeding, plaintiff sought to set aside, on the ground of fraud, the final settlement of his mother Ann Barnett (formerly Nelson), as administratri? of the estate of his father, Robert C. Nelson, Sr., deceased.

— Hon. D. P. Stratton, Judge. (1) The court erred in striking out that portion of defendant’s answer pleading the statute of limitations of the state of Kansas, for the reasons: First. The statute of limitations of Kansas not only bars the remedy but extinguishes the right. Taylor v. Miles, 5 Kan. 498; Chicks v. Willetts, 2 Kan. 384; Bobbins v. Sackett, 23 Kan. 302; Railroad v. Burlingame, 36 Kan. 633; Sibertv. Wilder, 16 Kan. 176; Rorkv.

(1) To quiet title by the remedy of a bill of peace, the plaintiff must first have established his right to the property by repeated trials at law. Sutton v.,Dameron, 100 Mo. 150; State v. Sioux City, 7 Neb. 375; Collins v. Collins, 19 Ohio St. 468; Thompson v. Engle, 4 N. J. Ch. Rep. 276; Patterson v. Jersey City, 1 Stockton (9 N. J. Eq.), 434; West v. Mayor, 10 Paige, 540.

— Hon. J. H. Sloven,, Judge. (1) The power of a trustee to release a deed of trust can only be a power to release upon payment. There was no payment of the indebtedness secured by the first deed of trust on the ninety-one acre tract. The release made by Winant’s trustee, was, therefore, void. Lakenan v. Robarás, 9 Mo. App. 179; Armstrong v. Robarás, 81 Mo. 445; Ferguson v. Qlassford, 68 Mich. 36; s. c., 35 N. W. Rep. 820.

— Hon, L. H. Watebs, Special Judge. (1) The description' of the land in the alleged deed from Jacob Myers to Erastus Brown of the lot of one arpent in the town of New Madrid, county of New Madrid, “confirmed to and in the name of the said Jacob Myers,” is too indefinite and uncertain, is void and conveys nothing.

— Hon. Andrew Ellison, Judge. (1) A decree can not be based on facts not proved. Paddock v. Lane, 94 Mo. 282; Boss v. Boss, 81 Mo. 84; 1 Daugherty v. Atkins, 81 Mo. 411; Bank v. Pinkney, 60 Mo. 531. (2) The judgment rendered can not be upheld under the pleadings. (3) The judgment is erroneous as to Mrs. Morton, if not void: Moore v. Dixon, 50 Mo. 424; Black on Judgments, secs. 183 and 184. (4) A judgment void as to one is void as to all. St. Louis v. Gleason, 15 Mo.

Louis City Circuit Court. — Hon. D. D. Eisher, Judge. (1) The court erred it taking the case from the jury. There was some evidence that Ryan’s fall was caused by defendant’s negligence, and where there is any evidence, be it ever so slight, in support of a material issue, it is the duty of the jury alone to determine the weight of such evidence. Kelly v. Railroad, 70 Mo. .608; Barry v. Railroad, 98 Mo. 62; Clay v. Railroad, 24 Mo. App. 39.

Certified from St. Louis Court of Appeals. (1) Service by publication on unknown defendants is as good as personal service when statute is complied with. R. S. 1889, secs. 2022, 2027; Troyer v. Wood, 96 Mo. 480, and cases there cited; State ex rel. v. Staley, 76 Mo. 158; Charles v. Morrow, 99 Mo. 646, and cases cited; Quigley v. Bank, 80 Mo. 296; Arndt v. Griggs, 134 U. S. 316; Adams v. Cowles, 95 Mo. 506.

J. M. Sandusky, Judge. (1) When a party to a suit is on the witness stand it is proper to interrogate him as to contradictory answers given by him at the time when his deposition was taken in the same suit. Thompson on Trials, sec. 831; Wiseman v. Railroad, 30 Mo. App. 516.

— Hon. C. H. S. Goodman, Judge. (1) Appellants take the ground that respondent is barred by the adverse possession of defendant Samuel. The plaintiff after having permitted defendant Samuel to occupy the land in suit adversely for seventeen years, as his testimony shows that he did, he can not call to his assistance the shield of his wife’s coverture, in order to evade the force of the statute of limitations, as pleaded by the defendants.

Charles Circuit Court. — Hon. W. W. Edwards, Judge. (1) The circuit court erred in overruling plaintiff’s motion to strike out part of defendant’s answer. That part of the answer embraced in said motion set up a counterclaim or set-off and constituted no legal defense to the action.

— Hon. E. M. Hughes, Judge. (1) The deed to Martin and French was void, or, at best, only a mortgage, and the title remained in the heirs. First. Where two or more persons are qualified as executors or administrators * '* * all must join in an application for an order to sell real estate.

Certified from St. Louis Court of Appeals. (1) There is no duty upon a railroad company to look after or police any of its right of way except the main track or that part they assume actual corporate control over. Reidmond v. Railroad, 13 Am. and Eng. R. R. Cases, 515; Railroad v. Kiriesey, 3 S. W. Rep. 190: Ward v. Wilmington, 13 S. E. Rep. 926; Edson v. Railroad, 40 Iowa, 47; Cham v. Railroad, 75 111. 577; Railroad v. McClanahan, 74 111. 436; Gilliland v. Railroad, 19 Mo.