Volume 128 — Missouri Reports

Louis County Circuit Court. The court erred in sustaining the demurrer to the petition, the plaintiffs having filed their petition in the court on the second day of December, 1892, two days before the lapse of a year from the death of their father, had commenced their suit in time, and the statute did not bar them because the clerk neglected to issue the writ of summons until after the lapse of a year. The filing of the petition was the commencement of the suit.

— Hon. W. M. Robinson, Judge. (1) Plaintiff’s fence was shown to be on the line of the original stakes set when the addition was surveyed and platted. The true line is determined by the location of these stakes and not by the calls of the plat. Jones v. Poundstone, 102 Mo. 244; Whitehead v. Ragan, 106 Mo. 235; Smith v. Co., 117 Mo. 438; Harding v. Wright, 119 Mo. 1.

— Hon. C. A. Anthony, Judge. (1) Even had the title been clear, the court should not set the sale aside on account of the mere inadequacy of consideration — since the sale was fair, open and free' from all suspicion of any fraud, combination, accident or mistake. Parlcer v. Bailroad, 44 Mo. 415; Phillips v. Stewart, 59 Mo. 491; Burfee v. Mor am, 57 Mo. 374; Brown v. Kirie, 20 Mo. App. 524; Brown v. Bailroad, 43 Mo. 294.

— Hon. J. H. Sloven, Judge. (1) The court erred in giving instruction number 3 for plaintiff. This instruction is in conflict with instruction number 4 given on behalf of defendant. Bluedornv. Railroad, 108 Mo. 39; State v. Eerrell, 97 Mo. 109. (2) Instruction number 3 for plaintiffs was was erroneous because: First. There was no evidence as to cost of restoring lot and improvements to the condition they were before the grading. Second.

— Hon. E. L. Soarritt, Judge. (1) The measure of care required of defendant in this case, as to the steps and other means of egress from its cars, was ‘ ‘such care only as a prudent person would exercise under like circumstances and in view of the danger.to be apprehended. Sargent v. Railroad, 114 Mo. 348; Hutchinson on Carriers, sec. 521 a-, Kelly v. Railroad, 112 N. Y. 443.

— Hon. Ben. E* Turner, Judge. (1) The partition proceeding of Belle Allen did. not affect the deed of Mrs. West, as the land now in controversy was not partitioned in that proceeding, but. simply set off to the widow as homestead without being-partitioned; the ultimate rights of none of the parties-therein to that proceeding were finally adjudicated. Case v. Mitsenburg, 109 Mo. 311; Thompson v. Bern,. 12 Mo. 157; Crenshaw v. Creek, 52 Mo. 98.

— Hon. James T. Neville, Judge. (1) In order that the title to the middle of the highway shall pass and become vested in the grantee when it is abandoned, the highway, road, or whatever it may be, eo nomine, must be used as a monument.

— Hon. E. L. Scarritt, Judge. (1) Appellant is entitled to have the action of the trial court reviewed in granting defendants a new trial and in setting aside the first verdict upon the appeal taken from the final judgment in the case. Laws, 1891, p. 70. The statute is a remedial one; is intended for the correction of defects in the former procedure. Sutherland on Statutory Construction, sec. •437. (2) All the defendants are guilty of the conversion of these goods.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) Refused instruction number 1 for plaintiff should have been given. The plaintiff was a passenger, even before he stepped upon the car, or after he left it. Buck v. Bailroad, 108 Mo. 185; Dougherty v. Bailroad, 9 Mo. App. 482, 485, and cases there cited; Burbridge v. Bailroad, 36 Mo. App. 677. First.

— Hon. Jambs Gibson, Judge. (1) It nowhere appears that the land to be taken of appellant and the other defendants, is in Jackson county, or in the state of Missouri, and this cause having been instituted in respondent’s mayor’s court, a court of limited and inferior jurisdiction, no jurisdiction was acquired. McQuoid v. Lamb, 19 Mo. App. 153; Schell v. Leland, 45 Mo. 289; McKinney v. Barral, 31 Mo. App. 41; Tegler v. Mitchell, 46 Mo. App. 349.

— Hon. Wm. S. Herndon, Judge. (1) Both conveyances of which the plaintiff complains, being voluntary and made without consideration, are void as to creditors. R. S. 1889, sec. 5170; Patton v. Bragg, 113 Mo. 595; Snyder v. Free, 114 Mo. 360; Sloan v. Torry, 78 Mo. 623.

— Hon. C. A. Anthony, Judge. No motion for a new trial was filed in this ease, and under the statute and the ruling >of this court in McCarthy v. McGinnis, 76 Mo. 344, and Johnson v. Carrington, 120 Mo. 315, there is nothing for this court to review, as no error appears in the record proper.

(1) The church had a constitution in 1841; it remained identically the same until the alteration was •effected in 1889. (2) The constitution of 1841 was recognized and treated by the church as its organic law for nearly fifty years. See Bear v. Heasley, 98 Mich. 279; Schlichter v. Keiter, 156 Pa. St. 119; Philomath •College v. Wyatt, 31 Pac. Rep. 206.

Court, — Hon. W. W. Wood, Judge. (1) The judgment sued on became dormant, by the laws of Kansas, section 445, on July 12, 1880, five years after it was rendered; and within one year thereafter, more than eleven years before this suit was brought, it became dead, and could not be revived.

— Hon. D. P. Stratton, Judge. (1) Huggins was a stranger to the tax proceedings against Boyd, The motion does not charge him with knowledge or information of any of the facts set up in the motion.

— Hon. J. H. Slover, Judge. (1) The county court of Jackson county had no power to hold regular monthly terms of said court alternately at Kansas City and Independence, and the proceedings had in said court at the June and July terms thereof, in the appointment of commissioners to assess damages for the opening of Grand boulevard— over the lands of Robert Hunter, mentioned in the petition — and the filing of their report thereon, were without warrant or authority in law, and…

— Hon. W. W. Rucker, Judge. (1) Notwithstanding the married women’s statutes in this state, the husband is still, it may be conceded, entitled to the possession of his wife’s real estate as at common law, and may sue in ejectment therefor. Bledsoe v. Simms, 53 Mo. 305; Cooper v. Ord, 60 Mo. 420; Kanagav. Bailroad, 76 Mo. 207; Wilson v. Garaghty, 70 Mo. 517; Dyer v. Wittier, 89 Mo. 81; Peck v. Lockridge, 97 Mo. 549; Flesh v. Lindsay, 115 Mo. 1.

— Hon. E. L. Soabbitt, Judge. (1) The city could not levy a tax upon the property of defendant based on the assessment made on the first day of June, 1890, for the taxes of 1891. This would be taxing of property outside the city limits for the benefit of those inside of it, and would in effect be taking the property of the citizen for private use, and would be in violation of fundamental law.

— Hon. J. H, Slover, Judge. (1) The court erred in giving a peremptory instruction to find for plaintiffs. Where the evidence tends to show fraud in fact as by permission to remain in possession and sell without accounting for and paying proceeds on debt secured, the question should be submitted to the jury. Hiseyv. Goodwin, 90 Mo. 368; Weber v. Armstrong, 70 Mo. 221; State, etc., v. Mason, 112 Mo. 382; Van Raaltev. Harrington, 101 Mo. 608.

— Hon. R. L. Yeager, Judge. (1) The charter provides that the suit shall be brought against .the “owner of the property.” Laws, 1875, p. 250, et seq. (2) Construing this provision, it has been held by our court: “That, in the absence of any knowledge or notice, to the contrary, the holder of the bill has a right to assume that the person in whom the records showed the title to be vested was the true owner and sue accordingly.” Vance v. Corrigan, 78 Mo. 97.

— Hon. D. P. Stratton, Judge. The facts of the case appear in the opinion filed in the first division, May 28, 1894, upon the first hearing. After that ruling, a motion for rehearing was made, which was overruled, one of the judges dissenting. On that dissent, the cause was transferred to the court in banc, and there re-argued.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) . Cars crossed by bridge during ice blockades are excepted by tbe contract and not chargeable against defendant. (2) Wabash cars crossed by the Madison County Perry Company when the St. Charles bridge was down were crossed by procurement of the Wabash Railroad Company anddelivered to defendant at Venice by the consent of plaintiff and should not be charged against defendant.

Habeas Corpus. (1) The criminal court of Jackson county had authority, by virtue of its inherent powers as a court of record, proceeding according to the course of the common law, to issue process commanding petitioner to appear as a witness before its grand jury with the ballot boxes and ballots or to produce any other documentary evidence in his office to aid said grand jury in its investigation of crimes in said county.

— Hon. M. A. Fyke, Fsq., Special Judge. (1) The court erred in denying defendant’s motion to dismiss under the amendment of 1892, to section 3 of article 10 of the Kansas City charter. The common council was without authority to proceed to establishment of a boulevard until the board of park and boulevard commissioners had selected routes and streets, etc. St. Louis v. Frank, 78 Mo. 41; St. Louis v. Gleason, 93 Mo. 33; Fore v. Hoke, 48 Mo.

— Hon. E. J. Broaddus, Judge. (1) William Winkler has a common law marital interest in the land affected by the decree and may,- by possibility have a curtesy in it. His rights should have been affirmatively adjudicated by the court. Dyer v. Wittier, 89 Mo. 87; Flesh v. Lindsay, 115 Mo. 1.

— Hon. W. I. Wallace, Judge. (1) The price paid for the land was grossly inadequate and calculated to shock the moral sense and throw a cloud of suspicion over the honesty of the entire transaction. Nelson v. Betts, 21 Mó. App. 231; Kerr on Fraud and Mistake.

— Hon. C. A. - Anthony, Judge. (1) The court erred in admitting parol evidence of the agreement and understanding of the parties as to the sale, delivery, etc. A written contract is the consummation of all prior propositions and negotiations between the parties, and is conclusively presumed to contain the whole contract. This principle is elemental and fundamental. Jolliffe v. Collins, 20 Mo. 338; Teaman v. Hoshaw, 98 Mo. 358.

Paris C. Stepp, Judge. (1) The deed from Benajah Doan to Sarah A. Doan and her heirs by John Doan, their heirs and assigns forever, immediately vested the entire estate conveyed, equally in respondent and her children by John Doan. Hamilton v. Pitcher, 53 Mo. 336; Allen v. Claybrooh, 58 Mo. 124; Bines v. Mansfield, 96 Mo.399; Bodine’s Adm’r v. Arthur, 91 Ky. 53; Tinder v. Tinder, 131 Ind. 381.

<p>1. Swamp Lands: conveyance: county court. A county was authorized, under the act of 1869 (Acts, page 67), to sell swamplands at private sale.</p> <p>2. -: -: seal. A common law seal affixed to a conveyance is sufficient in the absence of the statutory seal.</p> <p>3. -: -: -r. The seal of the county court impressed upon paper attached to the deed, and adopted by a commissioner appointed to convey swamp lands under Bevised Statutes, 1879, section 671, is sufficient.</p> <p>4. -: -: -. The acknowledgment of a commissioner appointed to convey county lands, may be considered in determining whether the seal used was adopted as his seal.</p>

Prohibition. The petition in the case of Walruff v. The Weston Brewing Company, referred to in the opinion, is as follows: “ In the Circuit Court of Jackson County, Missouri, January term, 1894.… Held: debt had sufficient situs in Illinois to hold garnishee by simple ability to get service on garnishee, though debt was payable in, and garnishee and defendant were residents of, Missouri. The decision laid no point on residence of plaintiff.

— Hon. R. H. Field, Judge. Since the trial below, the doctrine invoked in support of this action has been disapproved by this court. So that, independent of the question whether the facts of this case would bring it within the rule contended for by plaintiffs, the judgment will have to be reversed and the cause remanded with directions to adjudge the costs, expenses and damages resulting from this litigation against the plaintiffs. Alberger v. Bank, 123 Mo. 313.

— Hon. E. M. Hughes, Judge. The hill of exceptions can not be considered, for the reason that it was not filed within the time first allowed by the court, and no sufficient order was made or entered of record in which to preserve it. The first order made by the court expired on August 15, 1894.

— Hon. C. C. Bland, Judge. (1) There was a total failure of evidence to prove the case pleaded in the petition. WaldJieir v. Railroad, 71 Mo. 514; Price v. Railroad, 72 Mo. 414; Jackson v. Ilardin, 83 Mo. 175; Harty v. Railroad, 95 Mo. 368. (2) There was no evidence of negligence on the part of the defendant which placed deceased in peril. No rate of speed is negligence per se, in the absence of a statute or ordinance regulating the rate of speed.

— Hon. J. J. Gideon, Judge. The bill of exceptions in this case can not be considered, for the reason that it was not filed within the time allowed by the court, but some five days after that time had expired.

— Hon. E. L. Scarritt, Judge. (1) The law providing for the selection of petit juries in counties containing a city of more than fifty thousand and less than three hundred thousand inhabitants (acts of 1891, p. 172), is in violation of section 53 of article 4 of the constitution of this state, which prohibits special or local legislation in reference to the “summoning or impaneling grand or petit juries.” State ex rel. v. Miller, 100 Mo. 438; State ex rel. v. Board, 89 Mo.…

Louis Court of Criminal Correction.— Hon. J. R. Claiborne, Judge. (1) The label of the Cigar Makers’ International Union of America is not a trade-mark, and is, therefore, not entitled to protection under the laws of Missouri relating to the registration and piracy of trademarks. McVeyv. Brendel, 144 Pa. St. 235; Weenerv. Brayton, 152 Mass. 101; Schneider v. Williams, 44 N. J. Eq. 391; Carson v. TJry, 39 Fed. Rep. 777; Trash Fish Co. v. Wooster, 28 Mo.

Louis City Circuit Court. — Hon. G-. W. Lubke, Judge. (1) The court erred in permitting the defendants to ask directly of their witnesses, in whose possession the warehouse was, and also in whose possession the whiskey in controversy was. Hart v. Railroad, 94 Mo. 255; Brown v. Plank Road Co., 89 Mo. 152; Gavick v. Railroad, 49 Mo. 276. (2) The instruction given by the court of its own motion was erroneous.

— Hon. John G-. Weak, Judge. The following is instruction number 2, given by the court of its own motion, referred to in the opinion: “No. 2. The right to defend one’s self against danger not of his own seeking, is a right which the law not only concedes but guarantees to all men. The defendant may, therefore, have struck the witness Lee Stewart with a knife and still be innocent of any offense against the law.

Louis Court of Criminal Correction. Hon. J. R. Claiborne, Judge. (1) To “fail and refuse to comply with an order of the health commissioners” or board of health, is not of itself, and can not be made, an offense. Hutton v. Camden, 39 N. J. L. 122; Bates v. District, 8 D. C. 433; Mayor v. Board of Health, 31 How. Pr. 385; Howard v. Bobbins, 1 Lans. (N. Y.) 63.

Certified from St. Louis Court of Appeals. (1) The court erred in giving instruction number 1. This instruction entirely ignores any supposed or alleged negligence or want of care on the part of the defendant or its superintendent. (2) . A master is not a warrantor or insurer of his servants’ or employees’ safety. Hayden v. Mfg.

— Hon. Reuben E. Ron, Judge. (1) Neither section 4575 nor its amendments alluded or applied to any railroad matter, or to any railroad aid bonds or indebtedness. (2) Neither section 4575 nor its amendments alluded to or applied to any unorganized township. Art. 9, sec. 8, const. Mo. 1875; ch. 162, art. 2, R. S. 1879; R. S. 1889, sec. 8429; Laws, 1883, March 31,1883, p. 171.

<p>Appellate Practice: MURDER. The record examined on appeal from a conviction of murder in the second degree, and, no exceptions having Been saved to the admission or exclusion of evidence, the instructions Being in proper form and no errors appearing in the record proper, the judgment was affirmed.</p>

— Hon. J. P. G-reen, Judge. (1) The title does .not pass where.goods are sold and something besides, mere delivery remains to be done by the vendor respecting the subject-matter of sale. Benjamin on Sales [2. Am. Ed], sec. 352.. (2) Replevin can not be maintained in this state upon .an executory contract of sale., Boutel v. Warrie, 62 Mo. 350; Benjamin on Sales, sec. 99. (3)- A bill of sale is neither under seal nor acknowledged. . Wherein are they, sacred?

Louis Criminal Court. — Hon. Henby L. Edmunds, Judge. (1) The instructions fully covered the law of the case and are in all respects unobjectionable. (2) The allegation in the indictment and the facts shown upon the trial, that for more than three years after the commission of the alleged felony, the appellant was not an inhabitant of nor usually resident of this state, sufficiently complied with the requirements of the statute of limitations. R. S. 1889, sec. 4001.

Louis County Circuit Court. — Hon. Rudolph Hiezel, Judge. (1) The instructions given by the court upon his own motion are those usually given in cases of this character, follow the forms ofttimes approved by this court, and cover very fully all the issues presented by the testimony. Nor are they subject to the criticism of the appellant that .they were erroneous, conflicting or so voluminous as to confound and confuse the jury in reaching a verdict.

— Hon. John W. Henry, Judge. (1) A debtor, though in failing circumstances, may prefer one creditor over another. Hargadine v. Henderson, 97 Mo. 375; Sampson v. Shaw, 19 Mo. App. 274; Hard v. Foster, 98 Mo. 279; Sellers v. Bailey, 29 Mo. App. 174. This proposition is so well settled in this state that it is unnecessary to make any extended-citation of authorities in support of it.

Prohibition. (1) It does not seem to be questioned that prohibition is the proper remedy to prevent the circuit court from proceeding to make orders for the enforcement of its judgment in a case which has been transferred to this court by appeal which operates as a supersedeas, or suspension or vacation of the judgment. State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. Billon, 98 Mo. 90.

— Hon. Argus Cos, Judge. (1) Even if the court had jurisdiction, one sale, even out of samples carried, does not constitute the seller a peddler. Kansas City v. Collins, 34 Kan. 436, and cases cited. (2) This was not a case of peddling, but of a commercial agent or traveler over which the state laws have .no jurisdiction. Trenton v. Clayton, 50 Mo. App. 540; State v. Hoffman, 50 Mo.

— Hon. C. A. Anthony, Judge. (1) The court should have sustained defendant’s demurrer to the evidence, for the reason that the transcript from the Gentry circuit court was not offered in evidence. .State v. Gates, -20 Mo. 400; Daudt v. Harmon, 16 Mo. App. 203; Crone v. Dawson, 19 Mo. App. 214; Maupin v. Franklin Co., 67 Mo. 237; State v. Edwards, 19 Mo. 674; State v: Daugherty, 106 Mo. 182; Adler v. Long, 26 Mo. App. 226.

' Louis Court of Criminal Correction. Hon. Jas. R. Claiborne, Judge. (1) The verdict is against the evidence, because there is no proof of the existence of the municipal ordinance alleged to have been violated. The existence of a law to be violated is the first essential fact in a prosecution. In the record presented, there is not the slightest suggestion of any proof of the ordinance alleged to have been violated.

— Hon. C. A. Anthony, Judge. (1) The verdict is against the evidence. “The general role is that before the court will relieve on the ground that the verdict is not supported by the evidence, there must be either a total failure of evidence or it must be so weak that the necessary inference is that the verdict is the result of passion, prejudice or partiality.” State v. Glahn, 97 Mo. 679. ■ Our contention is that the present case comes within the exceptions stated in this…

— Hon. E. J. Beoaddus, Judge. Action by plaintiff for damages because of the fraudulent conversion by defendants of twenty shares of stock in the State National Bank of El Paso, Texas, of the face value of $100 each. The record discloses that: In 1881 plaintiff became the owner of twenty shares of the capital stock of the State National Bank of El Paso,. Texas.

Louis City Circuit Court. — Hon. L. B. Y allí ant, Judge. The cause was set for hearing April 15, 1895. Appellant’s brief was not served on respondent until March 23, 1895, less than thirty days before the day set for hearing. Rule 15 of the supreme court requires at least thirty days’ service and rule 16 authorizes the dismissal of the appeal for failure to comply with rule 15. Respondent asks that the appeal be dismissed.

— Hon. E. M. Hughes, Judge. (1) The supreme court in equity cases will make findings of fact according to the weight of the evidence, and will determine the law of the case, not being bound by the findings of fact or the conclusions of law of the trial court. Thompson v. Cohen, 24 S. W. Rep. 1025. (2) Appleberry was a nonresident and penniless.

— Hon. Silas Woodson, Judge. (1) The ordinance is unconstitutional in providing for unreasonable searches and seizures and in compelling a citizen to produce books and papers to be used in evidence against himself, and unreasonably interfering with the legitimate business of a private citizen.

(1) The court below should have sustained defendant’s demurrers to the evidence. Where the evidence, juridically considered, does not support the verdict which was rendered thereon, the appellate court will reverse a judgment rendered upon it. The evidence must not only be substantial, but credible.

Mandamus. (1) The continuing recognizance, entered into by defendant at the November term, 1893, of the Yernon county circuit court, continued in force until released by a new valid obligation to appear at the Henry county circuit court. (2) Such an obligation has not been given in this case because: First. The sheriff was not authorized to accept a bond, the defendant not being in custody. Second.

— Hon. James H. Lay, Judge. Action for damages for injuries received while a passenger on the defendant’s train.

<p>1. Practice in Supreme Court: failure to file indexed transcript. The filing of a printed transcript, which, is neither indexed nor certified to by the clerk, is not a compliance with rule 14 of the supreme court allowing a printed and indexed transcript, duly certified by the clerk, to be filed instead of the manuscript record.</p> <p>2. -: FAILURE TO FILE ABSTRACT: DISMISSAL OF APPEAL. Rorfail. ure to file an abstract as required by rule 13 of the supreme court, the appeal will be dismissed as authorized by rule 16.</p> <p>3. -: record proper: bill of exceptions. Recitals in the bill of exceptions will not supply the record proper.</p>

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) Section 12 of Act of April 23,1891, page 177, Session Acts, 1891, is unconstitutional and void, because it is special legislation and violates section 53, of article 4, of the constitution of the state of Missouri. Murnane v. City, 28 S. W. Rep.; State ex rel. v. County Court, 89 Mo. 240; State ex rel. v. Miller, 100 Mo. 450; State ex rel. v. Herman, 75 Mo. 341.

— Hon. C. A. Anthony, Judge. (1) The court below erred in finding for the contestant, for the reason that W. L. Torrence, A. M. Stephenson and J. P. Stephenson were legal voters at said election, notwithstanding the fact of their being students at the college located in said city, at the time of said election. Constitution of the state of Missouri, art. 8, see. 7; McCrary on Elections [3 Ed.], secs. 66, 68, pp. 41, 42.

— Hon. W. W. Wood, Judge. (1) There is no evidence on which to predicate instruction 1, given by the court at the instance of the defendant; not a scintilla of evidence that plaintiffs, or either of them, “accepts the line” (indicated by Bybee, surveyor) “by telling the workmen to go ahead and build the partition wall thereon.” The theory of the instruction is erroneous.