Volume 132 — Missouri Reports

Louis City Circuit Court. — Hon.' D. D. Fishes, Judge. (1) Appellant' only having been paid for the twenty feet of ground and the improvements thereon she had a right to have the damage aásessed to the remaining thirty feet.

— Hon. E. L. Scarritt, Judge. (1) The demurrer to the evidence should have been sustained. It was the duty of plaintiff’s husband, when approaching the railroad crossing, to use every reasonable precaution to avoid the accident. He was bound to look and listen for an approaching train. If there were difficulties in the way of either seeing or hearing, he was on account thereof required to exercise the greater care. Beach on Con.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) It is submitted that the decree of the circuit court is erroneous in that: First. It is based on erroneous view of respondent’s property rights in the tracks proposed to be used. Railroad v. Railroad, 105 Mo. 562; Railroad v. Railroad, 97 Mo. 457; Railroad v. Railroad, 111 Mo. 666;. Railroad v. Railroad, 118 Mass. 290. Second.

<p>1. Partnership: unadjusted item: action at law. One partner may sue another in an action at law where the transaction relates to one unadjusted matter growing out of the partnership transactions.</p> <p>2. -: settlement of accounts. A statement of receipts and. expenditures made out for the purpose of ascertaining the loss of the firm does not constitute a settlement of the partnership accounts or the statement of an account as between its members.</p> <p>3. -: -. The evidence in this case examined and held not to show a settlement of partnership accounts and a promise by one partner to pay a remainder due the other.</p>

— Hon. Rudolph Hirzel, Judge. Plaintiff, as child and heir of A. W. Beyse, was-entitled to recover. No issue over the question of alienage was made by the pleadings. Defendant, therefore, can not question the title of plaintiff on account, of alienage. State v. Killian, 51 Mo. 80; Burke v. Adams, 80 Mo. 504. The title of an alien is not subject to collateral attack.

— Hon. W. 0. Mead, Esq., Special Judge. (1) The ticket printed upon the official ballot and captioned “Democratic Ticket,” is fraudulent as a matter of law, and the contestee was not entitled to have any of such tickets cast or counted in his behalf. The same remark applies to the ticket captioned “People’s Party Ticket.” Shields v. McGregor, 91 Mo. 534; Gumm v. Hubbard, 97 Mo. 311; sec. 4671, R. S. 1889; Turner v. Brake, 71 Mo. 285.

— Hon. E. M„ Hughes, Judge. (1) The court erred in holding that plaintiff’s losses in bonuses paid to keep the defendant’s mortgage from closing him out was “a mere accident and the other party could not be held liable,” and in excluding the proposed evidence.

<p>Descents: adoption op children. A child duly adopted is a child capable of inheriting, within Revised Statutes, 1889, sections 4518, 4520, providing that the widow may take half her husband’s real estate if he die leaving no child capable of inheriting. (Moran v. Stewart, 122 Mo. 295.)</p>

— Hon. Andrew Ellison, Judge. (1) Defendant’s demurrer to plaintiff’s evidence should have been sustained. Vogler v. Montgomery, 54 Mo. 577; Harrington v'. Utterback, 57 Mo. 519; Peasev. Cameron, 102 Mo. 568. (2) The statute provided that the widow and children of the homesteader shall take the same estate therein of which the deceased died seized; and that estate this court has determined passed to the widow and her heirs free from the payment of all debts of the deceased.

— Hon. John A. Hockadax, Judge. (1) At common law marriage vested in the husband the personal property of the wife, then owned, or thereafter acquired, by her and of which he obtained possession, the rule was predicated upon the idea of identity of the two, but in equity the wife has such a separate existence from her husband that she could have and hold a separate estate.

— Hon. John A. Hockaday, Judge. (1) Under the evidence the statutes of limitations did not obtain and the court erred in finding that they did. Gordon v. Bans, 97 Mo. 587; Handlan v. McMannus, 100 Mo. 124; House v. Montgomery, 19 Mo. App. 170. (2) There is some evidence tending to show that the defendants thought that under their deed they were the owners of the strip of ground, and some evidence tending to show that Miss Lou Wright had the same impression.

<p>1. Evidence: impeachment op witness : proof of unchastity of made. Evidence of general bad reputation for chastity is admissible to impeach one testifying as a witness, and the rule is applicable to male as well as female witnesses. Per Gantt, J., Brace, 0. J., Barclay and Macfardane, JJ., concurring.</p> <p>2. -: -: -. The foregoing rule held to apply to a defendant testifying in his own behalf in a prosecution for defiling a female confided to his care. 16.</p>

Prohibition. (1) The appointment of respondent as referee was illegal, improper, and in violation of relator’s statutory right and he is without jurisdiction in the premises. (2) The referee is not merely an adding machine — he is a separate judicial tribunal. In stating an account he must decide what items are to be included in that account and what excluded. This involves the exercise of a judicial power. It has been uniformly held that a referee is a court in himself.

— Hon. R. E. Roy, Judge. (1) The court admitted testimony as to habit of plaintiff and others of going on and jumping off the moving train at the station of Monroe.

<p>1. Practice, Criminal': defendant testifying: admissions. A defendant in a criminal cause testifying in his own behalf who failed to deny incriminating testimony of the state’s witnesses will be held to have admitted its truth.</p> <p>2. -: change of venue: arraignment. Where a change of venue has been granted in a criminal cause, the defendant may be arraigned after the cause has reached the county to which the change was awarded. Revised Statutes, 1889, section 4167.</p> <p>3. -: LARCENY: RECENT POSSESSION OF STOLEN PROPERTY: ALIBI: instruction. It is proper to instruct that where property admitted to have been stolen was found in the exclusive possession of one recently after being stolen, such person will be presumed to be the thief, and the burden is on him to overcome the presumption to the satisfaction of the jury, “but not beyond a reasonable doubt,” and unless such presumption is overcome to their reasonable satisfaction by explaining such possession, or by evidence of good character, or of an alibi, or by one or more of the kinds of evidence “just men-' tioned,” the jury should find him guilty.</p> <p>4. -: reasonable doubt: instruction. An instruction authorizing an acquittal in a criminal trial upon a reasonable doubt of guilt and declaring that such doubt must be “fairly deducible from the evidence considered as a whole,” and that “the mere possibility that defendant may be innocent will not warrant an acquittal on the ground of a reasonable doubt,” is proper.</p> <p>5. -: -: -. An instruction as to reasonable doubt need not be applied seriatim to each item of evidence in the ease, but it is sufficient to give a general instruction on the subject applicable to the whole evidence.</p> <p>6. -: ORAL DIRECTION: INSTRUCTION: REJECTED TESTIMONY. An oral direction by the court to the jury not to consider rejected testimony is not an instruction and is not improper.</p> <p>7. -: evidence: self-serving acts. Conduct of an accused, after his arrest, tending to show his innocence is in the nature of a self-serving act, and evidence of it is inadmissible in his behalf upon the trial.</p> <p>8. -: APPLICATION FOR CONTINUANCE: INTENDMENTS: DILIGENCE. No favorable intendments are indulged in favor of an application for continuance in a criminal cause. It must be more carefully drawn than a pleading and not state conclusions of law, but state specifically the facts relied on, and it must be determined, not only with reference to the sufficiency of the words employed in it, but with regard to the surrounding circumstances before and at the time made, in order that it may be known what, if any, diligence was used.</p> <p>9. -: -: absent witnesses: diligence. Where defendant was indicted May 9, and granted a continuance to the September term, when he was awarded a change of venue to another county in whieh court convened November 12, and his trial began December 3, an application for a continuance at the latter date, to procure the testimony of witnesses who had left the state, was properly denied, where such witnesses were present at the September term and were not recognized to appear at the trial; that they formerly lived twelve miles distant and subpoenas were not issued for them until November 15, and it was not shown that defendant did not know that they intended to leave the state, or that their evidence was material.</p> <p>10. -: -: -: -. Due diligence requires that a defendant who knows of the intention of his witnesses to leave the state, should take their depositions before their departure.</p> <p>11. -: -: ABSENT SICK WITNESS: APPELLATE PRACTICE. The discretion of the trial court in denying a continuance to enable a party to procure the testimony of a sick witness will not be disturbed on appeal, where it appears that other witnesses could have been obtained equally as competent as the absent witness, to testify upon the same subject-matter.</p> <p>12. -: -: counter affidavits. The truth of allegations made by an applicant for a continuance as to what the testimony of the absent witnesses would be, can not, it seems, be controverted by counter affidavits.</p> <p>13. -: -: amendment. It is not the practice to allow an amendment to an application for a continuance, and, if it were, it is a matter that should rest in the discretion of the trial court.</p>

— Hon. C. A. Anthony, Judge. (1) The riparian owner is not the owner of the soil in the bed of the Missouri river, but owns only to the water’s edge; plaintiff only taking title to the margin of the river can claim in addition to the original grant only such land as may have been added thereto by the regular process of accretion or reliction. Benson v. Morrow, 61 Mo. 345; Naylor v. Cox, 114 Mo. 232; Bees v. McDaniel, 115 Mo. 145; Cooley v. Golden, 117 Mo. 33.

— Hon. W. W. Rucker, Judge. (1) The court erred in allowing the prosecuting witness to state, against the objection of defendant, that a day or two before the trial he came back on Tuesday evening and promised to marry her. This was objected to as incompetent. Objection overruled, and defendant excepted. This was more than a year after the alleged seduction, and was not evidence tending to prove that any promise of marriage existed at the time of the alleged seduction.

— Hon. B. E. Turner, Judge. The court erred in refusing declaration of law number 1, offered by the appellant, for if respondent and appellant did not intend any oats was to be delivered on contract of sale, it was a gambling contract, and if money was paid thereon, by appellant, to respondent, within three months next before the beginning of this suit appellant was entitled to recover it back.

Louis Court of Criminal Correction. Hon. David Murphy, Judge. The evidence did not establish a “lewd and lascivious abiding and cohabitation,” within the meaning of the statute. At most the facts simply showed circumstances from which adultery in secret might be inferred.. They totally failed to show any ostensible “ living together ” as husband and wife. R. S. 1889, sec. 3798; State v. Crowner, 56 Mo. 147; State v. Osborne, 39 Mo.

— Hon. Argus Cox, Judge. (1) The court by the addition to instructions numbers 4 and 5, virtually instructed the jury that although the prosecuting witness had once fallen, but if she had returned to the paths of virtue that would warrant a conviction, which was erroneous because, if the law, there was no evidence to show that prosecutrix had reformed, and hence no evidence on which to predicate such instruction.

The indictment in this case is sufficient. It clearly and fully charges the crime of perjury of which the defendant was chárged and has been convicted. Its allegations are full and complete, and notified and apprised the defendant of the charge he was required to meet. R. S. 1889, sec. 3665; State v. Cave, 81 Mo. 450; State v. Huckeby, 87 Mo. 414.

— Hon. E. C. Ceow, Judge. The indictment follows the language of the statute. R. S. 1889, see. 3564. It negatives the pretense. State v. Peacock, 31 Mo. 413. And alleges that the party from whom defendant obtained the money parted with same by reason of the false pretenses. State v. Bonnell, 46 Mo. 395.

— Hon. J. J. Gideon, Judge. (1) The court can only examine the record proper in this case, for the reason that nothing else is preserved. The record bears evidence that the trial, together with all other proceedings, was regular. (2) The indictment is in the usual form, and clearly charges the crime of which the defendant has been convicted. R. S. 1889, section 3537.

— Hon. Eeuben E. Eov, Judge. An examination of the record in this case discloses the fact that no copy of the indictment was ever given or served on the defendant or furnished to him. This is a requirement of the statute that could not be waived by the accused. The evidence is not, as a matter of law, sufficient to authorize the verdict. The shooting of the deceased by the accused was the result of a sudden quarrel, during which there was no time for deliberation.

— Hon. J. J. Gideon, Judge. (1) The court erred in admitting the mortgage in evidence; also in admitting the mortgage given by the defendant after trading for the horses. The state offered it to show the intention of defendant. If so, the court erred in not instructing the jury to that effect as it only tended to mislead and prejudice them. (2) The verdict is clearly against the weight of the evidence, and is the result of passion and prejudice.

<p>1. Jurisdiction of Supreme Court: practice: waiver. The question of the appellate jurisdiction of the supreme court can not be waived by the parties or ignored by the court and may be considered on appeal, although not raised by the parties.</p> <p>2. -: OFFICER: MAYOR OF CITY of third olass. The mayor of a city of the third class acts wholly under the powers conferred by the municipal charter and is not an officer "under this state,” within the meaning of section 12 of article 6 of the state constitution and section 5 of the amendment of 1884, giving the supreme court jurisdiction in cases involving “title to any office under this state.”</p>

— Hon. William S. Herndon, Judge. (1) Under the evidence introduced, the case should have been submitted to the jury. The rule is well settled that if there is any evidence tending to prove the issues, the case must go to the jury. Groll v. Toioer, 85 Mo. 249; Moody v. Deutsch, 85 Mo. 237; Baum v. Fryrear, 85 Mo. 151.

Mandamus. (1) When the judgment of the Boone circuit court in the case of the Scott-Eoree Hat Company v. Sturgeon Savings Bank et al., was modified and affirmed in this court, “with directions to enter a particular judgment, that court had no power to enter any other judgment, or to consider or determine other matters not included in the duty of entering the judgment as directed. All other matters had become res adjudicata and could not be reopened.

E. M. Hughes, Judge. (1) The principal question for consideration in this case, is whether the gift of $500 to Clarinda Morris by her father, Richard Wommack, as a part of the consideration in the purchase of the land by James Morris, created a resulting trust in the land purchased in favor of Clarinda Morris. The consideration ex-. pressed in the deed is $1,050, and prima facie this is what Richard Wommack and James Morris agreed was the value of the land.

Louis City Circuit Court. — Hon. D. D. Eisher, Judge. (1) As tlie pledgee came rightfully into possession of the property pledged, he is not liable for conversion until that element of right has been removed. Therefore, to lay the ground of an action for conversion, which action is based upon actual possession, or the right to the present possession, the lien of the pledgee must first be discharged, either by payment or tender.

— Hon. John A. Hockaday,. Judge. (1) The testimony of Kurtz and Schwabe as to what the executors intended to sell, was inadmissible.

— Hon. W. W. Ruqker, Judge. (1) The Wilcoxsons being stockholders, and the officers of the plaintiff corporation, were not competent witnesses. R. S. 1889, sec. 8918. (2) Witnesses who would be benefited by their testimony are as equally incompetent as if they were parties to the record. Meier v. Thieman, 90Mo. 334.

— Hon. John A. Hookaday, Judge. (1) This proceeding was instituted with a full knowledge of the fact that this court had indirectly in several cases, and directly in at least one case ( Webb v. Donaldson, 60 Mo. 394) ruled against the interpretation sought to be given sections 2092, 2093, R. S. 1889, by plaintiff in error.

Louis Criminal Court. — Hon. Henry L. Edmunds, Judge. (1) The indictment is in the approved form, and a careful examination of the record fails to disclose any error apparent upon the face thereof. (2) The fourth, fifth, and seventh grounds for new trial are not sustained by the record. First. It does not appear from the bill of exceptions that any testimony whatever was admitted over and against the objection of defendant. Second. .

— Hon. Argus Cox, Judge. (1) The circuit court of Dallas countyhad .no jurisdiction to try the case; a legal and formal application had been made by defendant and a change of venue had been granted to the Hickory circuit court; no written application or affidavit was made as to any cause of change of venue at Hickory county, and change of venue was granted from Hickory circuit court upon agreement in open court and no compliance with statutory requirements.

— Hon. J. W. Wofford, Judge. (1) The court erred in its rulings on the evidence. The evidence of the alleged threats was inadmissible. Suppose Cahn had killed Pollard; any threats previously made by Pollard against Cahn would have constituted no excuse or justification, unless the threats had been communicated to Cahn, or some overt act had been committed by Pollard, indicating a present purpose to execute such threats.

Louis Criminal Court. — Hon. Henry L. Edmunds, Judge. (1) The indictment is sufficient in all respects, and is even more comprehensive in its allegations than is required by the statute.

Louis Criminal Court. — Hon. H. L. • Edmunds, Judge. • (1) The court erred in refusing to grant defendant’s first application for a continuance: First. Because his counsel had not had sufficient time to prepare his case for trial. State v. Jewell, 90 Mo. 467; State v. Lewis, 74 Mo. 222. Second. Because he had been unable to obtain a chemical analysis of the properties held by the state with a view to obtaining evidence upon his trial. Third.

Louis Court of Criminal Correction.— Hon. David Murphy, Judge. (1) The act under which defendant was prosecuted, “An act making it a misdemeanor for any person to carry on the business of barbering on Sunday”. (Laws of Mo. 1895, page 150) is in conflict with section 53 of article 4, and section 30 of article 2, of the constitution of this state and therefore void. State v. Loomis, 115 Mo. 307; State v. Willett, 54 Mo.

Charles Circuit Court. — Hon. E. M. Hughes, Judge. . (1) The indictment is insufficient as to the offense of which the appellant was convicted. The instructions did not cover the law in the case and are incorrect. The court should have instructed the jury as to what elements constitute the crime of embezzlement as distinguished from the crime of larceny or that of criminal conversion to his own use. State v. Simmons, 71 Mo. 540. There is error on the face of the record.

— Hon. J. H. Slover, Judge. (1) The circuit court erred in refusing to quash the panel of jurors which tried the case. (2) In the third instruction for the plaintiff the court instructed the jury “that upon the issue of contributory negligence of plaintiff raised by defendant’s answer, the burden of proof is upon defendant.” The giving of this instruction was error.

— Hon. D. P. Stbatton, Judge. (1) The court erred in overruling defendant’s application for a continuance. State v. Lee, 98 Mo. 609. An application for a continuance by defendant, on account of the absence of material witnesses, which is the first one made, and which meets with the requirements, should be granted. State v. Bradley, 90 Mo. 160. Defendant was entitled to have his witnesses, present.

<p>Criminal Practice : indictment: instructions. Where, in a criminal ease it appears that the indictment is sufficient, that the instructions fairly presented the law, and that the defendant otherwise had a fair and impartial trial, the judgment will he affirmed.</p>

— Hon. John A. Hoceaday, Judge. (1) No person should be convicted as a felon unless upon a good and sufficient indictment found and returned into court by a grand jury duly impaneled, charged and sworn, and his guilt otherwise’ ascertained and determined in accordance with all due forms of law.

— Host, D. W. Shackle-ford, Judge. The petition states all the statutes require. R. S. 1889, sec. 8675; Bellv. Clark, 30 Mo. App. 224; Benshaw v. Loyd, 50 Mo. 368; Brown v. Hartsell, 87 Mo. 567; ILenry v. Loto, 73 Mo. 96.. The answer is a general denial and when plaintiff showed an unbroken title to the land this carried with it possession, unless it ■could be shown that someone was in actual possession, which was not shown. Authorities above cited.

<p>1. Habeas Corpus: st. loots court of criminal correction: jur- ' isdiction. A judge of the St. Louis court of criminal' correction has no jurisdiction of an application to release, on habeas corpus, one held in custody under an indictment-for murder where either of the judges of the criminal court are in the city.</p> <p>2. Prohibition: st. louis court of criminal correction: jurisdiction. Prohibition will lie to prevent the improper exercise of jurisdiction by the judge of the court of criminal correction.</p>

— Hon. B. E. Tubneb, Judge. (1) In Missouri, it has been repeatedly held: That the intention of the legislative act may often be gathered from a view of the whole and every part of the statute taken… Held: That the intention of the legislative act may often be gathered from a view of the whole and every part of the statute taken and compared together. When the true intention is accurately ascertained, it will always prevail over the literal sense of the terms.

— Hon. E. M. Hughes, Judge. (1) This court in equity cases will review all questions presented in the record and make findings of facts according to the weight of the evidence adduced, and will determine the law applicable thereto. Thompson v. Cohen, 24 S. W. Rep. (Mo.) 1023.

— Hon. D. W. Shackleford, Judge. (1) The courts of this state have no legal power to enjoin the secretary of state in the performance of his constitutional and statutory duties in connection with the submission of the proposed amendment to the constitution of the state of Missouri, or to prevent the qualified voters from ratifying or rejecting the said amendment in the manner provided in the constitution and statutes, unless the court first determines that the general…

— Hon. James T. Neville, Judge. (1) This was a proceeding quasi in rem, within the meaning of the rule, that after such proceeding had been commenced in the state court no proceedings could be commenced in the United States court which would oust its jurisdiction and prevent the state court from proceeding to judgment and sale of the premises.

— Hon. J. T. Neville, Judge. - (1) The most that the defendant can claim under the testimony in this case is that John P. Campbell dedicated the land in question to a public use for a public graveyard; an easement was created in the public for that purpose and none other, and while used for such purpose neither Campbell nor plaintiff holding him were entitled to the possession of, or any benefit from, said premises, but the moment there was an attempt or actual use of the…

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The acceptance of the renewal notes suspended all right of action on the original notes or debt until the nonpayment at maturity of the renewal notes. 2 Daniel on Neg. Instruments, sec. 1272. (2) And by reason of such extension of time, granted without the knowledge or consent of plaintiff, he was discharged from all liability as surety. Bank v. Leavitt, 65 Mo. 562; Barrett v. Davis, 104 Mo. 549; Bank v. Wood, 56 Mo.

— Hon. W. W. Rucker, Judge. (1) The court erred in permitting plaintiff to file the amended petition after the cause had been tried and submitted to the court; it introduced a new cause of action which is not permissible. (2) The court erred in permitting respondent to prove by the witness, Rose, declarations made by W. Y. Harlan in regard to the deeds after the suit was brought; he was not a party to the suit, and his statements were hearsay as to the defendants below.

— Hon. J. H. Slover, Judge. (1) The jurors being the sole judges of the credibility of witnesses and of the weight of the evidence, it was their province, and not that of the court, to pass upon the credibility of the witnesses for plaintiff and the weight to be given to their evidence, and in giving said peremptory instruction the court invaded the province of the jury.

Louis Gownty Circuit Court. — Hon. Rudolph Hiezel, Judge. (1) The court erred in permitting G-eo. L. Edwards to .testify as an expert. First, because this is not a case for expert testimony; and, second, because his examination did not show him to be an expert as to the value of this kind of stock. Hewitt v. Steele, 118 Mo. 474; Brinkerhoff, etc., Co. v. Home Lumber Co., 118 Mo. 447; Sistara v. Olcott, 15 N. Y. St. Rep. 246, 42 Ohio, 30.

Louis City Circuit Court. — Hon. D. D. Eisher, Judge. (1) The circuit court erred in declaring the law to be that the appellant was not entitled to recover, because the promise and agreement of the respondent not to plead the statute of limitation was not made in writing. It was not necessary that the promise or agreement should be in writing. 1 Wood on Limitations [2 Ed.], sec. 76, pp. 228, 229; 2 Herman on Estoppel and Res.

— Hon. H. 0. Riley, Judge. Action for damages brought by plaintiff as the widow of Herman Aufdenberg, against defendant company for the death of her husband.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. The verdict was against the great weight of evidence so far as adequately and fairly compensating plaintiff in error for the injuries he received, and was contrary to the instruction of the court regarding the measure of damages.

— Hon. Paris C. Stepp, Judge. (1) The court erroneously held that defendant’s agent could waive, and in fact did waive, the condition in the policy of insurance in suit as to keeping books, etc. Fire Ins. Co. v. Small, 66 Fed. Rep. 490; Sprague v. Ins. Co., 49 Mo. App. 423, and cases cited; Fletcher v. Ins. Go., 117 U. S. 531; Mensing v. Ins. Co., 36 Mo. App. 602; Shoup v. Ins. Co., 51 Mo. App. 287; Greenivood v. Ins. Co., 27 Mo. App. 412.

— W. C. Brown, Esq., Special Judge. division ONE. The material parts of the deed of trust mentioned in the opinion are as follows: “This deed, made and entered into this 24th day of August, one thousand, eight hundred and eighty-eight, by and between Geo. N. Boughton and Oallie G. Boughton, his wife, of the first part, and F. M. Ladd, of the second part, and Ohas.

Louis City Circuit Court. — Hon. D. D. Pishee, Judge. (1) On the pleadings and evidence plaintiff is not entitled to any damages. Prom whatever standpoint of fact the ease may be viewed, the evidence is uncontradicted that plaintiff’s property was worth from $3,000 to $8,000 more after the change of grade than it was before the street was graded and improved. (2) Under the law plaintiff is not entitled to any damages.

— Hon. J. H. Slover, Judge. (1) The court erred in overruling defendant’s motion to quash the panel. The law of 1891 is unconstitutional. The act of 1891, in Session Laws of 1891, page 172, is invalid and unconstitutional, on the following grounds: First.

— Hon. Reuben F. Roy, Judge. The plaintiff, a brother of John C. Young, seeks by this equitable proceeding to have canceled a sheriff’s deed made to defendant Schofield, November 18, 1892, for certain land in Marion county, the judgment under whieh the sale occurred having been rendered in Knox county, June 12, 1889, for the sum of $232.63, in favor of Schofield and against John C. Young, who resided in Lewis county.

<p>Appeal from Buchanan Circuit Court. — Hon. H. M. Ramey, Judge.</p> <p>(1) The court below erred in refusing to grant a continuance upon the application of defendant, T. M. Smith. His attorneys stated in their motion that his presence was essential to properly advise in the examination and cross-examination of witnesses. First. The supreme court has the right to review the discretion of trial courts in refusing applications for a continuance. State v. Maddox, 117 Mo. 667; State v. Anderson, 96 Mo. 241. Second. As a party to the suit, charged with an offense of a criminal character, he should have been given the opportunity to be present to protect not only his property rights but his character. Welcome v. Boswell, 54 Ind. 299; Matthews v. Willoughby, 11 S. E. Rep. 620; s. o., 65 Ga. 839; Jaffe v. Linenthal, 35 Pac. Rep. (Col.) 636; Kitchen v. Hutchins, 44 Ga. 620. (2) Upon all the testimony, the decree in this case ought to have been for defendants. This case being an equity case and all the evidence being preserved in the record, the supreme court will examine the whole record, substantially trying it de novo and will reverse the judgment rendered below if not satisfied of its correctness. Blount v. Spratt, 113 Mo. 48; Draston v. Mueller, 103 Mo. 624; Fulkerson v. Sapping-ton, 104 Mo. 472; Bellv. Campbell, 123 Mo. 1.</p> <p>(1) The action of the circuit court in overruling appellants’ application for a continuance was preeminently proper. First. The application is defective. It presents no reasonable grounds for a continuance. Second. The case had been’pending since September 2, 1892. Two terms of the court had elapsed; what occurred in the meantime was known to the circuit court, and that court knew from all the facts in the case that the appellants were not entitled to a continuance. Third. Every presumption will be indulged in favor of the ruling of the circuit court in refusing a continuance. Leabo v. Good, 67 Mo. 126; State v. Jewell, 90 Mo. 467; Steele v. Baily, 94 Mo. 311; Solomon v. State, 14 S. Rep. 461; LaBouisse v. Mfg. Go., 9 S. Rep. 492; Waarichv. Winter, 33 111. App. 36. (2) The evidence in this case clearly shows that Thomas M. Smith forged the deed in controversy, so far as the home place is concerned; or, in other words, that after the deed was executed, he added thereto a description of lot (8) in block (36) in Smith’s addition to the city of St. Joseph, Missouri, and thereby undertook to deprive Mrs. Smith of her home. The evidence tending to show this fact is so clear, forcible, and cogent as to be practically undisputed ; hence the decree of the circuit court was preeminently right and proper.</p>