Volume 135 — Missouri Reports

Certiorari. This is a proceeding by certiorari commanding respondent to certify to this court a certain petition for a writ of hateas corpus filed before him by Foster Pollard and Frank Harris. (1) The petition for hateas corpus filed in this cause is incomplete, imperfect, and does not conform to the rules of pleading applicable to cases of this kind.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) As abutting owners the plaintiffs are entitled to maintain this action.

— Hon. William S. Herndon, Judge. (1) It was the duty of defendant as treasurer of Andrew county to pay all county warrants legally drawn by the county court on account of the ordinary and usual expenses of said county, and presented for payment by the legal holders thereof, out of the funds mentioned in such warrants, in the order in which they were presented for payment. R. S. 1889, sections 3166, 3167, 3168, 7665.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) The referee and circuit court erred in holding that the plaintiff is entitled. to recover any amount •whatever from the city of St. Louis, under his petition, and the evidence in the case. Persons dealing with municipal officers must ascertain, at their peril, that such public agents are acting strictly within the sphere, limited and prescribed by law, or the city will not be liable.

— Hon. A. M. Woodson, Judge. (1) The trial court should not have permitted the amendment of the petition. It introduced a new issue and a new cause of action after said cause had been to the supreme court upon other issues, and after costs had been made. Hammoncl v. Cameron, 20 Miss. 509; Van Marer v. Johnson, 15 Oal. 308; Vestnerv. Griffith, 1 Miss. 414; Harich v. Hrichson, 50 Mo. 117.

— Hon. John W. Henry, Judge. (1) The decree is not supported by any evidence and is against the evidence. Plaintiff’s evidence repeated and reiterated was that he had purchased a one eighth partnership'; that he had bought one eighth of the real estate and all the assets. Defendant’s evidence is t-hat plaintiff had for this $5,000 purchased one eighth of the profits and this $4,000 guaranty. The competent evidence all substantiated the claim of the defendant.

— Hon. John W. Henry, Judge. (1) The quality of the estate conveyed to a married woman must he determined by the deed vesting title in her; and if it contain no words excluding the marital rights of the husband and apt to describe a separate estate, it is not separate property. Haul v. Leavitt, 53 Mo. 595; IClenke v. Koeltse, 75 Mo. 243; Martin v. Colburn, 88 Mo. 230; Lakeman v. Mcllhaney, 17 Mo. App. 413; Allen v. DeOroodt, 98 Mo. 160; Nicholson v. Flynn, 24 Mo.

— Hon. M. G. MoGregor, Judge. (1) The court erred in overruling defendant’s motion for judgment on the pleadings, because: First. It did not appear-on their face that the certificate of the authorities of Peirce City certifying the local assessment and the rate of taxation fixed by the city had been filed with the county clerk or made in 1884, or any of the succeeding years at the time and as required by section 7730, Revised Statutes; 1889. Second.

— Henry Brumback, Esq., Special Judge. (1) There was evidence tending to show that the insufficiency of the safety chains contributed to the accident, and that the purpose of said chains, in part, was to hold the engine and tender together in case of the breaking of the drawbar or kingbolt.

— Hon. W. M. Robinson, Judge. (1) Competent evidence, which tends to prove or may form a part of the proof of the matters in issue, should not be excluded. 1 Thompson on Trials, sec. 386. (2) The object of judicial investigations is the truth, and the tendency of modern ruling is, under reasonable rules, to exclude nothing that can throw light upon the transaction. Coughlin v. Eaeussler, 50 Mo. 128.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) Mandamus is the appropriate and proper remedy. Mandamus may not direct a particular action or judgment, but will compel the county court to act. The county court declined to receive the petition of the town of Kirkwood or to take any action thereon but to reject it. Therefore mandamus is the appropriate remedy. State ex rel. v. Court, 73 Mo. 560; State ex rel. v. Cramer, 96 Mo. 84; High on Ex. Leg.

(1) The tax bills in controversy, held by August Hahn, are void if the case of the City of Westport ex rel. v. Mastín, 62 Mo. App. 647, correctly states the law. If they are void, of course the city should be compelled to issue new ones, in accordance with law. If they are not void, of course the city has done its duty and the judgment should be affirmed.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) First. The petition in an action of replevin must state that the plaintiff has a general or special property in the subject-matter of the suit. Benedict, etc., Co. v. Jones, 60 Mo. App. 219. Second. A receiver can not sue in a foreign jurisdiction. Ins. Co. v. Needles, 52 Mo. 17; Glenn v. Hunt, 120 Mo. 341; Booth v. Clark, 17 How. (U. S.) 322. (2) The court erred in the admission of testimony.

— Hon. J. E. Green, Judge. (1) An action of ejectment can not be maintained against a defendant who is not in possession of any of the property described in the petition, and the sheriff’s deeds read in evidence did not place the defendant in possession of the premises described in the petition and in controversy here. Childers v. Schants, 120 Mo. 305.

— Hon. W. W. Rucker, Judge. (1) It was error in the court to instruct the jury to find for the plaintiff unless they should find from the evidence that the assessment number 79 was made on the members of the company to pay death losses. (2) The verdict should be set aside because defendant’s defense that a proper notice was mailed was good at law was complete and unimpeached. 2 Am. and Eng. Ency. of Law, 176.

— Hon. C. C. Bland, Judge. From the petition it will be seen that respondent predicates his right of recovery upon sections 953 and 954, Revised Statutes, 1889, and it appearing from the agreed statement of facts that this was an interstate shipment, the case is clearly within the case of Grimes v. Fddy, 126 Mo. 168, where it is held that the provisions of the sections above referred to, leveled against railroad companies in transporting Texas cattle through Missouri, is in…

<p>ON MOTION TO VACATE SUPERSEDEAS.</p> <p>1. Appellate Practice: appeal bond: insolvency of sureties: vacation op stay op execution. Where the surety on an appeal bond has become insolvent, after the appeal has been allowed and bond approved, the appellate court, in which the cause is pending may vacate the stay of execution produced by the bond, unless the appellant will give another appeal bond with approved security.</p> <p>2. -: -: -: -. An order for a stay of execution is subject to the control of the court in which the cause is pending.</p> <p>3. -: -: -: -. A court has control of its process and is authorized to see that its process does not become an instrument of injustice.</p> <p>4. -: statutory stay op execution. A statutory stay of execution fills the place of a writ of supersedeas in an older system of practice, though it is of broader scope because equity and law are administered in Missouri in the same court.</p> <p>5. -. The supreme court in Missouri has certain inherent powers by virtue of the constitution and laws, governing its organization.</p>

Louis City Circuit Court. (1) Respondent is liable for the rent and penalties, whether the lease of April 10, 1884, constituted an assignment or only a sublease. R. S. 1889, secs. 6388, 6389; Martin v. Hicks, 25 Mo. App. 359; Hulett v. Stockivell, 27 Mo. App. 328; Garroute v. White, 92 Mo. 237.

(1) The demurrer did not distinctively specify its grounds and -hence should have been overruled. See. 2044, E. S. 1889; Alnutt v. Loper, 48 Mo. 321; Chelley’s Aclm’r v. Wells, 33 Mo. 106; McClurg v. Phillips, 49 Mo. 316; McNair v. Lott, 25 Mo. 182; Roberts v. Bartlett, 26 Mo. App. 611. (2) The petition stated sufficient facts to constitute a cause of action.

<p>Appeal from Jackson Circuit Court. — Hon. J. H. Slover, Judge.</p>

-Hon. Jas. T. Neville, Judge. (1) The policy of the law is against setting aside judicial sales. Hewitt v. Weatherly, 57 Mo. 276; Jones v. Manly, 58 Mo. 559. (2) Mere inadequacy of consideration can not defeat .the title of the purchaser at an execution sale, and constituted no defense to an action in ejectment by him. Boll v. Graham, 15 Mo. App. 289; BMneharclt v. Long, 95 Mo. 396; Whitman v. Taylor, 60 Mo. 127; Bouldin v. Etvart, 63 Mo. 330.

— Hon. W. W. Wood, Judge. (1) If upon the undisputed testimony the verdict was for the right party, then the court below erred in granting a new trial on account of any alleged error. FLomuthv.Railroad, 31 S.W. Rep. 903. (2) Upon the undisputed facts there was no negligence. Farley v. Co., 18 Atl.- Rep. 1090; Keller v. Railroad, 24 Atl. Rep. 159; Weboiolshy v. Railroad, 48 N. W. Rep. 1097; Seddon v. Bicldey, 25 Atl. Rep. 1104; Race v. Ferry Go., 34 N. E. Rep. 280.

Habeas Corpus. Whatever may be the rule in other states, it has always been the rule in Missouri that the constitutionality of a law can not be inquired into by habeas corpus. Ex parte Harris, 47 Mo. 164; Ex parte Boen-ninghausen, 91 Mo. 301; Ex parte Mitchell, 104 Mo. 121; Exparte Olden, 21 Mo. App. 267; Ex parte Boivler, 16 Mo. App. 14; In re Wooldridge, 30 Mo. App. 617.

Prohibition. The proceeding before Judge Wear was upon a petition in which Mr. Kerfoot was named as plaintiff and the “St. Louis, Kennett & Southern Railroad company, a corporation, and Louis Hoiick,… Held: and still holds, 108 shares, and E. S. McCarty, Harry H. Ferguson, Melvin L. Grray and George Deni-son respectively held 108 shares.

— Hon. Argus Cox, Judge. (1) W. B. Freeman was not a purchaser in good faith. The law requires men in such matters to use reasonable prudence and intelligence to acquaint themselves with the condition of their title to property, and if they fail to do so, they can not be innocent purchasers. Freeman v. Moffitt, 119 Mo. 280; Tydings v. Pitcher, 82 Mo. 379; Bank v. Delano, 48 N. Y. 336; Patterson v. Booth, 103 Mo. 414; Fitthugh v. Barnard, 12 Mich. 104.

— Hon. Andrew Ellison, Judge. (1) While the action of the county court approving the annual settlements of respondent partook of the nature of judgments {State, etc., v. Rickman, 84 Mo. 74), the approvals were not judgments, and at most they were merely prima facie evidence in respondent’s favor.

— Hon. C. L. Dobson, Judge. (1) The general rule is that he who employs an independent contractor to do work is not liable for the negligence of that contractor, but to this general rule there are exceptions: First. In case the work is necessarily dangerous to the person or property of another. Second. Or in case the person authorizing the work is charged with the duty of seeing that it is carefully done. Third.

— Hon. C. A. Anthony, Judge. (1) Certiorari is the proper method of correcting an erroneous assessment, as no appeal lies from the action of the board of equalization. State v. Dowling, 50 Mo. 134; State ex rel. v. St. Louis County Court, 47 Mo. 594; B. B. V-.. Board of Equalisation, 64 Mo. 294; Harris on Certiorari, sec. 4, p. 6.

Quo Warranto. (1) The rule that two incompatible offices can not be held by the same incumbent is founded on the plainest principles of public policy, and has obtained from very early times, and when one has two incompatible offices both can not be retained.

<p> Quo Warranto. </p> <p>(1) The merchants’ license tax authorized by Revised Statutes, section 6899, is a personal property tax and merchant licenses are taxable for school purposes, and the school board of the city of St. Louis has power to levy a tax upon them. State ex rel. v. Tracy, 94 Mo. 217; State ex rel. v. Kinney, 48 Mo. 374. (2) A license fee is a tax. St. Louis v. Spiegel, 90 Mo. 587. (3) Indirect taxes may be said to embrace taxes upon imports, excise taxes, and license and occupation taxes. Veaxie Bank v. Fenno, 8 Wall. (U. S.) 533; Scholey v. Bew, 23 Wall. (U. S.) 331. (4) A tax upon carriages by number is an indirect tax. Hylton v. U. S., 3 Dali. (U. S.) 171. (5) So is a tax upon receipts, or a succession tax, or an income tax. Springer v. U. S., 102 . U. S. 602. (6) “While the payment of a city taxis a condition prerequisite, which must be complied with before, any party can hold the position of director in this board, the time of payment is immaterial, provided such payment precedes the actual qualifying by the party elect as a director, and that the payment of such a tax at any time, however remote from or proximate to such time of qualifying, satisfies the condition. * * *” Atty;s Opinion, 2 Off. Proc. 366, 381. See, also, opinions of several attorneys, 2 Off. Proc. 386, 387.</p>

— Hon. W. W. Wood, Judge. (1) Blocks 1, 3, and 7 being separated by public streets, are, therefore, separate tracts, arid the unlawful occupation of Hopkins street by the respondents, gave them no right to have these blocks considered as one tract. Pa. Co. v. Railroad, 151 Pa.

<p>1. Bill of Exceptions, Settlement Of: rule oí? court : statute. Rule 31 of the St. Louis eity eireuit court requiring hills of exceptions to he prepared and served on the adverse party within ten days after any ruling at special term which is excepted to, and prohibiting the signing of any hill hy the judge unless served within such time, is an abridgment of the rights of litigants under Revised Statutes, 1889/ section 2168, which provides that exceptions taken during a trial may he reduced to writing and filed during the term at which taken, and it is the duty of the trial judge to settle a hill, if properly prepared and presented, at any time during the term.</p> <p>2. --: -. A court can not make and enforce a rule that will deprive a party of a right given him hy law or which grants the right upon terms more onerous than those fixed hy law.</p>

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) The trial court erred in holding that defendants were not entitled to have their equitable defense considered because of the pendency at that time of the injunction proceeding in the city of St. Louis.

<p>1. Will: pretermitted heir: intestacy: statute. Specific bequests Ry name to the minor children of testator’s adopted daughter with whom they lire, is a sufficient reference to the daughter to prevent the operation of Revised Statutes, 1889, section 8877, declaring that a testator shall Re deemed to have died intestate as to children not named or provided for in the will.</p> <p>2. -: -: -: -. The purpose of Revised Statutes, 1889, section 8877, providing that a testator shall he deemed to have died intestate as to children not named or provided for in the will was to produce intestacy only where a child is unknown or forgotten and was thus unintentionally omitted.</p>

Hon. Alexander Ross, Judge. (1) All courts and others concerned, in the execution of last wills shall have due regard to the directions of the will,- and the true intent and meaning of the testator, in all matters brought before them. Eevised Statutes, 1889, sec. 8916. (2) The leadings rule in the interpretation of the will is, that the intention of the testator, as expressed in it, shall control.

— Hon. W. S. Herndon, Judge. (1) While the reviewing court will defer somewhat to the findings of the trial court, it will not be concluded by them, but will review the whole case, and when proper, reverse. Benne v. Bchnecko, 100 Mo. 250, where the principles governing the supervising control of the supreme court over the findings of the trial court are lucidly set forth. McElroy v. Maxwell, 101 Mo. 295.

— Hon. J. H. Slover, Judge. (1) The ordinance excluded by the court provides, “One or more watchmen shall be employed * * * to be stationed at each of the crossings hereinafter named, whose duty it shall be by day and night, to notify all persons about to cross the railroad track at any such crossing, of the approach of any locomotive, tender or car.” The failure of defendant to have such watchman at the crossing of Grand avenue and Front street, is one of the grounds of…

— William Henry, Esq., Special Judge. (1) Parol evidence is admissible to show the actual consideration for a deed. 17 Am. and Eng. Ency. of Law, page 438, and cases cited. (2) Plaintiff not having renounced the settlement made upon her by her husband, she could not claim under him as doweress. R. S. 1889, sec. 4530. (1) The deed from Solomon Halferty to plaintiff will not operate to bar plaintiff’s claim by virtue of section 4529, Revised Statutes, 1889.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) The first instruction given at the request of the defendant is fatally defective, in that it eliminated from the consideration of the jury the common law negligence alleged and proven. Any number of negligent acts preceding the injury, and contributing to it, may be pleaded, and any one proven will entitle a recovery.

Louis Court of Criminal Correction. Hon. David Murphy, Judge. (1) The information is drawn under section 3782, Revised Statutes, 1889, and is in proper and approved form. The statute was amended since the Barr .& Widen decision, and now includes credit and reputation. Kelley’s Grim. Practice, sec. 919; R. S. 1889, sec. 3782; State v. Barr & Widen, 28 Mo. App. 84. The information charges an offense under this statute.

Louis Court of Criminal Correction. Hor. J. R. Claiborre, Judge. (1) The evidence fails to show that the defendant was hauling “garbage and offal,” as charged in the information, or as contemplated by the ordinance in question. State ex rel. v. Smith, 114 Mo. 180; State v. McCcmce-, 110 Mo. 398; Dudley v. Tel. Co., 54 Mo. App. 391; Cornel v. Tel.

<p>1. Highway: township organization: statute. A substantial compliance with Revised. Statutes, 1889, section 8554, relating to establishing public roads on township lines, in counties under township organization, is sufficient.</p> <p>2.-: -: -■: appeal: presumption. Where the county court on appeal from the township boards in such proceeding has before it evidence that the records of the boards as originally written contained a finding that “the petitioners and owners failed to agree” and that someone attempted to erase it, but it was still visible on the township records, it will be presumed, on appeal to the supreme court in favor of official action that the county court found that the true record showed sufficiently that there had been a failure to agree on the compensation to be paid.</p> <p>3. -: -: -. Under Revised Statutes, 1889, section 8556, relating to the laying out of a highway on township lines, in counties under township organization, the circuit court will not, on appeal, review the question of damages sustained.</p>

— Hon. W. W. Wood, Judge. (1) The probate court has not equitable or chancery jurisdiction, and could not, and did not, adjudicate the question of plaintiffs’ right to enforce q vendor’s lien to the property in controversy. Boss v. Julian, 70 Mo. 209; Church v. McElhinney, 61 Mo. 540; Church v. Boberson, 71 Mo. 326; Patterson v. Booth, 103 Mo. 402; Boston v. Murray, 94 Mo. 175; In re Elliott v. Wilson, 27 Mo.

— Hon. William S. Herndon, Judge. (1) The first deed was for a valuable consideration, and ‘ 'neither old age, disease, mental weakness, inadequacy of consideration, nor confidential relations, are per se independent and substantial grounds upon which courts of equity will interfere to relieve a party from a contract voluntarily entered into, for a valuable consideration. ’’’ Taylor v. Crockett, 123 Mo. 300; Likins v. Likins, 122 Mo. 279; Pennington v. Stanton, 28 S. W. Rep.…

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) The third amended petition sets out two distinct grounds of action: One on the failure of the driver to exercise ordinary care and the other upon the ordinance. (2) A city ordinance can not change the common law liabilities of a civil nature between private parties, nor fix a new standard of negligence. Henry v. Sprague, 11 R. I. 456; Railroad v. JErwin, 89 Pa.

— Hon. H. M. Ramey, Judge. (1) Respondent’s mere unexplained possession of the goods at the time we -levied, gave him a prima facie right to recover them from us. Mere possession is prima facie evidence of right. Hence our admission. Best’s Prin. Evi., pp. 30, 299, 358; Wharton, Evi., secs. 1331 and 1336; Vastine v. Wilding, 45 Mo. 89. (2) But where possession which, prima facie, is evidence of right, is shown to be wrongful, it will not sustain replevin.

— Hon. C. A. Anthony, Judge. (1) The record and evidence disclose that every necessary preliminary step has been taken by the county court to authorize the creating of the indebtedness, and the issuing of the warrant. (2) Where jurisdiction exists, proceedings are in nature of judgments, and can not be collaterally assailed, but are held conclusive of the rights of parties.

<p>1. Injunction: assessment op damages : appellate peaotioe. Under Revised Statutes, 1889, section 5500, an appeal may be taken from an order dissolving an injunction while a motion for assessment of damages on the injunction bond is pending, the eSeet of the appeal being to suspend the action on the motion until the determination of the appeal.</p> <p>2. Railroad: condemnation proceeding: estoppel. Plaintiff railroad obtained from a mill company a right of way twenty-five feet wide for a spur track to a mill; filed a plat of the route, constructed its road and made no effort to acquire additional land until after defendant railway had bought from the mill company the twenty-five foot strip remaining between plaintiff’s right of way and the mill and had begun grading; whereupon plaintiff brought proceedings to condemn said strip. Held, that although a railroad company is authorized under Revised Statutes, 1889, section 2543, to acquire by eom-demnation a strip of land one hundred feet wide, yet plaintiff should be restricted to the quantity it elected to-take before defendant’s right accrued.</p>

Louis City Circuit Court.— Hon. D. D. Fisher, Judge. (1) The circuit court erred in refusing to give the instruction for a nonsuit offered by the city, both at the close of plaintiff’s case and at the close of all the evidence in the case.

— Thomas R. Morrow, Esq., Special Judge. (1) Leaving it discretionary with the circuit judge to enforce or not, at his will, the giving of personal notice to property owners is a delegation of power not warranted by the constitution of Missouri. State v. Field, 17 Mo. 529.

— Hon. C. A. Anthony, Judge. (1) This suit having been begun within ten years from the date of the tax deed, is not barred by the ten years statute of limitations. Pitkin v. Beibel, 104 Mo. 505; Pitkin v. Shacklett, 106 Mo. 571. (2) The purchaser under the tax deed, in case it was not sustained, has, under the statute, the right to recover the full sum paid by him on the land at the tax sale. Wag. Stat., p. 1207.

— Hon. A. M. Woodson, Judge. (1) The insertion of the figures “10” before'the words, “per cent” in the note and deed of trust in suit was made by James Brim. Such insertion changed the. terms of both those instruments, and, having been made without the consent of the maker, rendered them void. Bankv. Nickell, 34 Mo. App. 295; Bankv. JEckey, 51 Mo. 272; Woodworth v. Anderson, 63 Iowa, 503.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) The court erred in permitting the paper propounded by defendants as the last will of Frederick W. Utz, deceased, to be read to the jury over plaintiffs’ objection and for refusing to give plaintiffs’ instructions asked at the close of defendants’ proof of will because the defendants failed to establish the proper attestation of said will of said Frederick W. Utz, by the attesting witnesses thereto.

— Hon. C. L. Dobson, Judge. (1) The action of the county court in ascertaining the average rate of taxation for school purposes is not subject to collateral attack. State ex rel. v. Railroad, 116 Mo. 15; State ex rel. v. Brassfield, 113 Mo. 90. It may be reviewed by appeal. R. S. Mo. 1889, secs. 3318, 3434, 7658; Colman v. Farrar, 112 Mo. 72. It may also be reviewed by certiorari. Ealpin v. Powers, 68 Mo. 320; State ex rel. v. Bowling, 50 Mo. 134.

— Hon. O. L. Dobson, Judge. (1) Sage had no interest whatever in any of the insurance until after Havens & Richardson were paid in full. It was part of his contract with Havens & Richardson in purchasing the property that he should get it insured for the amount of the purchase 'money, which was $4,250, with interest at the rate of eight per cent per annum from November 4, 1884.

— Hon. D. W.. Shackleford, Judge. The court will not consider the bill of exceptions-which is embodied in the transcript in this ease for the-reason that the same has nob been signed by the judge who tried the cause. Sec. 2167, R. S. 1889; Garth v. Cold-well, 72 Mo. 622.

— Hon. J. W. Henry, Judge. (1) The court erred in admitting in evidence the statute of the state of Iowa, and Mr. Stiles’ oral testimony as to the unwritten law of that state relative to the liability of telegraph companies; and also erred in giving the third, fourth and fifth instructions on behalf of the plaintiffs. The telegram in question was sent from Cedar Rapids, Iowa, to Kansas City, Missouri.

— Hon. W. N. Evans, Judge. There is nothing in the entire transcript to show that the hill of exceptions was ever filed. If filed during term time, the record entry must show it; if filed at any time after the adjournment of the term, the in-dorsement must appear upon the bill of exceptions; neither appear from this record; hence this appeal must be determined from the record proper. Lafollette v. Thompson, 83 Mo. 199.

— Hon. C. A. Anthony, Judge. (1) The indictment is insufficient; in not charging that the assault was deliberately made. (2) The court erred in overruling the application for a continuance.