Volume 150 — Missouri Reports

— HoN. Richard Field, Judge. (1) Tbe answer states, and tbe demurrer admits, that tbe items of $299.68 and $218.60, sought to be set off against plaintiff’s demands, were at tbe time of the assignment, due and payable to tbe treasurer and collector of Saline county, respectively. Tbis money was on deposit in tbe bank, and, at tbe date of tbe assignment, constituted an existing indebtedness against it, which was then due and could have been sued for and recovered at that time.

— Hon. D. W. Shackleford, Judge. (1) The court erred in refusing to grant defendant a change of venue. Constitution, art. II, sec. 22; R. S. 1889, section 4156 as amended by the legislature in 1895.

Louis City5 Circuit Court. — Hon.' James E. Withrow, Judge. (1) Plaintiff may charge in one count as many acts of negligence on the part of the defendant as he alleges caused the injury; and the lower court erred in striking from the petition the allegation that defendant was negligent in not providing the grip car with a fender. This error was repeated in the last instruction given on behalf of defendant. Hill v. Eailroad, 49 Mo.

— Hon. John Gt. Weab, Judge. (1) The indictment is insufficient. It does not charge the defendants with carnally knowing her or ravishing her. (a) It charges an assault and no more.- (b) It charges an impossibility, to wit: That three persons committed the ra-pe at the same moment of time on the same person. They should have been indicted separately. State v. Gray, 21 Mo. 492.

Transferred from St. Louis Court of Appeals. (1) In February, 1899, a rehearing was granted in this case with order to put it on April term docket. On March 2, 1899, appellant served copy of abstract of the record on the respondents; it is hied and trial asked on it. Appellant has the right to file an abstract here under the statute and the rules of the court. The clause of the abstract showing the filing of the bill of exceptions is made full. This is the only change made.

Mandamus. (1) That the case involved the construction of section 16, article IX, of the Constitution of Missouri, and that the question was fairly and directly raised by these relators on the record, can not be denied.

<p> Transferred from St. Louis Court of Appeals. </p> <p>(1) Taking tbe official oatb is a sufficient user of tbe office to support tbis proceeding to oust respondent therefrom. Rex v. Tate, 4 East 337; People v. Callaghan, 83 Ill. 128; State ex. rel. v. Meek, 129 Mo. 436. (2) Justices of tbe peace shall be elected in tbis State by ballot by qualified voters of tbe several townships and justice of tbe peace districts. Art. VIII, sec. 3, Constitution; Laws 1891, p. 175; sec. 6090, R. S. 1889. (3) Tbe respondent must rely wholly on tbe strength of bis title to tbe office, and not having been elected thereto by tbe qualified voters of tbe district, bis right to bold tbe office must depend entirely upon the terms of tbe instrument issued to him by tbe mayor of the city of St. Louis; and that instrument, in turn, can be of no validity unless it is expressly authorized by a valid statute, and shows on its face a full compliance with all tbe requirements of tbe statute authorizing it. State v. Wilkinson, 23 Neb. 716; Beck v. Board of Elec. Corns., 61 N. W. 346; State ex .rel. v. McGann, 88 Mo. 390; State ex rel. v. Townley, 56 Mo. 107; State v. Adams, 2 Stew. 231; State ex rel. v. Vail, 53 Mo. 97; State ex rel. v. Mason, 77 Mo. 189; High Ex. Leg. Eem., sec. 229.</p> <p>(1) What is meant by the words “the county court shall decide the same,” used in the connection in which they are found in the law? Is this manifest power given to a •political officer or body of political officers to decide the election (if that is the fair meaning of these words, applied to the case of a tie vote at a popular election) inimical to any provision of the Constitution? Furthermore, these questions which might otherwise give considerable trouble, are answered in advance, by the Supreme Court not only with great fullness, but also with admirable precision, in the case of Lewis v. State ex rel. Mayo, 12 Mo. 128. In re-enacting the present section 6099, as has been regularly done by the legislature at every opportunity since the year 1835, the legislature intended the words, 'decide the same,” to be understood in the sense given to this language in the ’Lewis case. The mayor of the city of St. Louis, therefore, had lawful authority to decide this election by giving a casting vote, as he did, in favor of this respondent, and thereby the election of this respondent was completely accomplished. (2) The duty to be performed in the exercise of the authority thus conferred by law upon the county court “to decide” an election is not a judicial duty, but an executive or ministerial function — merely a power to determine, i. e., end a tie by giving a casting vote. There is, therefore, no impropriety in the statute that transfers this duty to an executive officer because of the abolition of the body to whom this power was formerly given.</p>

— Hon. James T. Neville, Judge. The provision in the notes described in the trust deeds sought to be released, to 'the effect that the shares of stock pledged to secure said debts, shall mature and be entitled to redemption at the par value of $200, at the end of one hundred months, and shall then be canceled in full satisfaction of the borrower’s note and deed of trust, should be construed as an estimated period at which said stock would mature, and not an absolute contract…

Quo Warranto, (1) The act divides a natural class, to wit, fire insurance companies, into two portions, making two classes out of one, and thus, in effect, arbitrarily enacts different rules for the government of each. This is contrary to the Constitution and laws of the State of Missouri. State v. Julow, 129 Mo. 163; State v. Walsh, 136 Mo. 400; Art. IV, sec. 53, Constitution. (2) This statute is class legislation.

— Hon. James H. Lay, Judge. (1) Where the testimony shows that the injury complained of, could have happened in more than one way, and there is no testimony showing how it did occur, then it becomes a matter of conjecture, and, as the burden of proof devolves upon the plaintiff to establish negligence affirmatively, he failed to make out a ease, and the court should have accordingly directed a verdict for defendant. 1 Greenl. on Evid.

<p>1. Change of Venue: error in award: no exception. Error in awarding a change of venue can not he corrected unless excepted to in the court which ordered the change, since the erroneous order, being within the court's jurisdiction, is not a nullity.</p> <p>2. -: disqualification of judge: no agreement or election. Under Revised Statutes 1889, section 2262, as amended by Laws 1895, page 93, providing that a change of .venue to another county because of disqualification of the judge shall not be awarded if the parties agree on a special judge, or request the election of one, a change of venue may be ordered because of the disqualification of the judge without asking the parties whether they will agree on a special judge or consent to the election of one, it being incumbent on them to make the agreement or consent to the election on their own motion.</p> <p>3. _; MANDAMUS: PRESUMED TO BE CORRECT. On an application for a writ of mandamus to the judge of a eireuit court to eompel him to reinstate a cause on the docket after he has granted a change of venue therein to another county, because the granting of the change was erroneous, it will he presumed that the order granting the change was correct until the contrary appears.</p> <p>4. -; -: when IT will NOT lie. Mandamus will not lie to eompel the eireuit court to take jurisdiction of a cause after it has erroneously granted a change of venue therein, the granting of a change of venue being within its jurisdiction.</p> <p>5. -: -: reviewable on appeal: no writ. An order granting a change of venue being reviewable on appeal or error, mandamus will not issue to correct it, though the aggrieved party, by failing to except, lost his right to have it reviewed.</p> <p>6. _: -: what petition must show. A petition for mandamus to the circuit court to compel it to take jurisdiction of a suit because its order granting a change of venue therein was erroneous in that it was made without asking the parties whether they would agree on a special judge, or consent to the election of one, must show that at the time the change was ordered there was present or available-a person competent to act as special judge, or that the requisite number of lawyers were present, from whom and by whom a special jüdge could be elected. (State ex rel. v. Bacon, 107 Mo. 627, overruled.)</p>

' Appeal from Boone Circuit Court. — Hon. John A. Hookaday, Judge.

— Hon. Edward C. Crow, Judge. (1) Tbe mere fact that one of tbe creditors secured by a chattel deed óf trust, fails to accept under tbe same, affords an unsecured creditor no ground for attachment where all the debts secured are Iona fide. In such case the act of the grantor amounts simply to an offer to secure the creditors so failing to accept. His act is a lawful act, and mere failure of one of the several creditors secured to accept can not make the act a fraudulent one.

— Hon. D. P. Stratton, Judge. Where appellant does not furnish a printed abstract of the pleadings and record, with an index at the end, the court will dismiss the appeal. Murrell v. McG-uigan, 49 S. W. 984; Halstead v. Sto^e, 49 S. W. 850; Rules 11, 12 and 13 of Supreme Court.

— Hon. W. H. , Roney, Special Judge. (1) Publication once a week for four weeks is a four weeks’ publication. Cruzen v. Stephens, 123 Mo. 337; Haywood v. Russell, 44 Mo. 252; Burnes v. Burnes, 61 Mo. App. 619. (2) Angelina Downey objected to the order of sale, not on account of the insufficiency of notice, but because sbe thought >a sale of the undivided interest of her husband in his land would not bring a sufficient amount to pay the debts of the estate.

— Hon. D. P. Stratton, Judge. (1) TLe demurrer offered by appellant at the close of respondent’s evidence, should have been given, as witness Reed, the only witness who was interrogated on the subject, testified that the walk, where the accident happened, was a .good walk until it was broken by a horse, and that it was broken on the 11th day of November, 1894, and that was •only one day before the accident.

— Hera. James H. Lay, Judge. (1) A purchaser at a sheriff’s sale looks only to the judgment, execution, levy and sheriffs deed. All other questions are between the parties to the judgment and the sheriff. Lenox v. Clark, 52 Mo. 115; Hewit v. Weatherby, 51 Mo. 216; Childers v. Sehantz, 25 S. W. 210; Wellshear v. Kelley, 69 Mo. 343. (2) In a suit for back taxes an order of publication against non-resident or unknown parties need not describe the land.

<p>1. Appeals in Criminal Cases: free transcripts: no counsel. ■ The practice of allowing an appeal at the cost of the State, and of furnishing the defendant a free stenographic transcript, and of imposing on this court the burden, without the aid of counsel, of reading the entire record in search for errors, has become, in the overcrowded condition of the docket, an intolerable burden upon the judges of the Supreme Court.</p> <p>2. Rape: female under fourteen years: instructions: force. Where the indictment charges rape of a female under the age of fourteen years, the instructions should be confined to carnal knowledge of the female and to her age, and should not submit the question of rape by foree and against her will.</p> <p>3. -: -: AGE: NEWLY DISCOVERED evidence. The prose-cutrix was the stepdaughter of the defendant, and testified that her mother had always told her she was born in 1883 (the crime was charged to have been committed in May, 1896). The defense objected to her mother’s testifying o.n behalf of the State on the ground that she was defendant’s wife, but introduced her for defendant, but declined to examine her as to the age of prosecutrix. After verdict, defendant filed an affidavit in support of anew trial made by his wife, who was friendly to the defendant, stating that prosecutrix was born in February, 1882, and that a few days after the trial she had visited the school the prosecutrix had attended and found she had been registered as born in February, 1882, and that she herself had furnished this information to the teachers at the time the child was entered at school. Held, first, that no diligence was shown- in the application for a new trial; and, second, that to set aside a verdict upon such a showing would be to trifle with the courts.</p>

— Hob. E. 0. Chow, Judge. (1) Rhoda C. Grubb being the wife of Joel Grubb, and having acquired title to her three-elevenths interest in the west half of the southeast quarter of section seventeen by inheritance from her father, and her husband Joel Grubb having purchased eight-elevenths of said land from other heirs, and by partition it having been set off to them, her interest was her legal, estate, as pleaded in plaintiffs’ petition, certainly not her separate estate and…

— Hon. D. W. SHACKLEFORD, Judge. (1) Defendant’s motion to compel plaintiff to elect should have been sustained. Trabue v. Ins. Co., 121 Mo. 75. (2) The defendant’s demurrer to the evidence should have been sustained. The statements in the application were warranties. The evidence is undisputed that the statements made were false. Whether they were material or immaterial makes no difference. Haqford v. Ins. Co., 121 Mo. 60.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) Tbe falsity of these specific statements of fact being conceded, it is impossible to avoid stigmatizing them as fraudulent.

— Hon. GK F. Longan, Judge. (1) If there was any negligence on defendant’s part, Sweeney must be charged with default in the same respect. There was the right to assume that the wagon would move out of the way until something appeared showing that the wagon could not move. Sinclair v. Railroad, 133 Mo. 241; Boyd v. Railroad, 105 Mo. 281; Bunyan v. Railroad, 127 Mo. 17. (2) It was error to exclude the testimony of John H. Twyman.

— Hon. W. W. Rucker, Judge. (1) Tbe deed of conveyance made and executed by Ziebr to bis wife, on December 22, 1891, and recorded March 17, 1892, was and is sufficient in equity to convey to and vest in ber tbe equitable right and title to tbe real estate in question. Wood v. Broadley, 76 Mo. 23; Woods-wortb v. Tanner, 94 Mo. 124; Turner v. Sbáw, 96 Mo. 22; Pitts v. Sheriff, 108 Mo. 110; Crawford v. Whitmore, 120 Mo. 144; Sackman v. Sackman, 143 Mo. 585.

— Hon. James T. Neville, Judge. (1) The legal title to this one-half acre passed to the purchaser at the partition sale. Plaintiffs show no' legal title in them and can not maintain ejectment even if they had an equitable title. Eord v. French, 72 Mo. 250; Norfleet v. Eussell, 64 Mo. 170; Dunlap v. Henry, 76 Mo. 106; Hunt v. Selleck, 118 Mo. 558. (2) Defendant’s objection to the introduction of any evidence should have been sustained.

<p> Transferred from St. Louis Court of Appeals. </p> <p>The question of title in this action is not involved. Mc-Aninch v. Smith, 19-Mo. App. 240; Sage v. Tucker,’110 Mo. ' 407; Hampton v. Massey, 53 Mo. App. 501.</p>

<p>Appeal from Clay Circuit Court. — Hon. E. J. Broaddus, Judge.</p>

<p>Appeals: no abstract or record transcript. Where there is no part of the record proper before this court, and nothing except a certified copy of what seems to be a bill of exceptions, the appeal will be dismissed.</p>

Louis City Circuit Court. — Hon. John M. Wood, Judge. (1) Where the publication of the notice to creditors is in due form, a claim against an estate must be exhibited and filed within two years from the grant of letters,.or it is barred, unless it comes within one of the saving clauses of the statute. The law is very strict in requiring creditors to comply with these statutes of non-claim. Ignorance of Spore’s death on tbe part of claimants was no excuse.

— Hon. W. S.. Hebndon, Judge. (1) If this was a contest between William H. Hanger and the defendant the judgment of the circuit court must be reversed unless the probate court lost jurisdiction by the final settlement, its approval and the discharge of the executrix because: Eirst.

Francois Circuit Court. — Hon. James D. Fox, Judge. (1) A homestead right acquired after the judgment lien had attached to the premises, if any such right was ever acquired, would be unavailing.

— Hon. G-eo. F. Longan, Special Judge. Tbe judgment was erroneous and the motion in arrest should have been sustained. Plaintiff was entitled to a judgment condemning a right of way over the land described in the petition and vesting in plaintiff an easement in defendant’s land for the purposes of such right of way upon payment of the excess of the verdict over the amount awarded by the commissioners and received by defendant.

— Hon. A. M. Woodson, Judge. (1) Tire answerstates a good defense. Prima facie the proposed construction, maintenance and operation of the track, under the city ordinance, was lawful, for a public use, and not a nuisance; and the burden rested upon the plaintiff to prove that the power exercised by the city was improperly exercised in this particular ease. Brown v, Railroad, 137 Mo. 529; Railroad v. Railroad, 97 Mo. 457; Gratis Mfg.

'Error to Cooper Circuit Court. — Hon. G. F. Longan, Special Judge. (1) The plaintiff’s petition, although voluminous, stated a good cause of action, and entitled him to the relief sought. Turner v. Johnson, 95 Mo. 431; Rose v. Bates, 12 Mo. 50; O’Fallon v. Clopton, 89 Mo. 288. (2) The trustee, Shackle-ford, being both seller and buyer, his sale is subject to be set aside or vacated. McKee v. Spiro, 107 Mo. 542. He can not buy at his own sale.

Louis City Circuit Coitrt. — Hon. Jacob Klein, Judge. (1) Wash was a general agent of defendant, and as such was clothed with authority to make the contract sued on, for and in behalf of the defendant. McNichols v. Golden, 2Y Mo. App. 155; Brooks v. Jameson, 55 Mo. 505; Railroad v. Elgin, Y4 Ill. App. 619; 2 Morawitz on Corps, sec. 59 Y; Griggs v. Selden, 58 Yt. 561; Kingsley v. Eitts, 51 Yt. 416; Gibson v. Snow Co., 10 So. 304; Morrimac Pop.

— Hon. E. K. McKee, Judge. (1) The defendant and Mrs. Lewis, plaintiff’s mother, were married in 1864. The land in suit was neither her equitable nor statutory, separate estate; it was conveyed to her by Scotland county in 1863, by an ordinary conveyance, and sold to her under the decree in partition, by sheriff’s deed in 1879, without any words excluding the husband’s marital interest.

— Hon. Leroy B. Valliant, Judge. (1) Where a judgment is reversed and the cause is remanded, the rulings of the appellate court become the law for the retrial of the cause. State v. Newkirk, 49 Mo. 472; Gamble v. Gibson, 83 Mo. 290; Ooquard v. Prendergast, 47 Mo. App. 243; State ex rel. v. St. Louis Circuit Court, 41 Mo. 574; Hurck v. Erskine, 50 Mo. 110; Treadway v. Johnson, 39 Mo. App. 176.

Transferred from Kansas City Court of Appeals. (1) Tbe court erred in overruling defendant’s objection to tbe introduction of evidence under tbe petition, because, admitting every allegation contained in it to be true, plaintiff could not recover. Tbe measure of damages where there is a total failure of title, thus causing an absolute breach of tbe covenant of seizin, is tbe purchase money and interest.

— Hon. P. C. Stepp, Judge. (1) The right to contract is a vested right, and where the parties are competent, and the contract and subject-matter legal at the time the contract is made, it is beyond the power of tbe State to annul it, or deprive tbe parties to it of its fruits. State v. Loomis, 115 Mo. 807; State v. Julow, 129 Mo. 163; State ex rel. v. Laclede Gaslight Co., 102 Mo. 472; Arnold v. Willis, 128 Mo. 145; Scotland Oo. v. Eailroad, 65 Mo. 123; Cooley on Const.

Louis City Circuit Court. — Hon. Pembrook R. Flitcraft, Judge. (3) The only defense against a purchaser of negotiable paper before maturity is bad faith on his part. He is not bound by constructive notice or by knowledge of facts that might put him on inquiry. Hamilton v. Marks, 63 Mo. 167; Borgess v. Vetter, 142 Mo. 573; Bank v. Schoen, 56 Mo. App. 167; Jennings v. Todd, 118 Mo. 304;.Johnson v. McMurray, 72 Mo. 278; Meyer v. Eobinson, 93 Mo. 115; Turner v. Hoyle, 95 Mo. 337.

— Hon. Richard Field, Judge. (1) “It is tbe settled law of this State that an agreement to dispose of property by will in a particular way, if made upon sufficient consideration, is valid and binding, and that, although the contract be oral, the part performance of it will take it out of the operation of the statute of frauds, when a refusal to complete it would work a fraud on the other party.” Euchs v. Euchs, 48 Mo.

— Hon. Angus Cox, Judge. The judgment rendered sought to appropriate the' property of Mrs. Windes to the payment of the debts of her husband and son. This would have been recognized in the days of feudalism, when women were slaves of men, as a legitimate proceeding; but in this enlightened age, after the enfranchisement of woman, it is no less than a judicial confiscation to take her property to pay other people’s debts. R. S. 1889, sec. 6868.

— Hon. PabisC. Stepp, Judge. (1) Plaintiff’s objection to evidence tending to prove tbe drunkenness of George W. Moberly at tbe time of making tbe various contracts with plaintiff should bave been sustained. If Moberly was drunk, it did not make those contracts void, but only voidable, and be only could object to them on that ground. These defendants can not avoid said contracts on that ground, even if they are shown to be in privity in estate with said Moberly.

— Hon. E. E. McKee, Judge. (1) A creditor, having reduced Ms demand to judgment, may bring a suit in equity to disclose the debtor’s interest in property held in the name of another, without first selling the land on execution. . Wait on Fraud. Convs. (2 Ed), sec. 60; Fowlér’s Appeal, 87 Pa. St. 464; Central Bank v. Doran, 109 Mo. 51; Woodard v. Mastin, 106 Mo. 824. (2) To fix and settle defendant’s interest in equity first, and sell afterwards, is the true equitable method.

Transferred from Kansas City Court of Appeals. (1) Tbe decree of December 3, 1890, to which Hickman was a defendant, directly and expressly adjudged that he “pay the judgment so obtained by the plaintiffs against said Blank as aforesaid, with interest thereon and costs of suit, out of the proceeds of the sale of said attached property in his hands, before paying any part thereof to said Schwartz and Samter.” That judgment was final in form, and, on appeal, was duly affirmed.

— Hon. Richard Field, Judge. (1) Plaintiff’s petition does not state facts sufficient to constitute a cause of action. It fails to state any facts stowing that the United States court, in which judgment in the Owings case was rendered, had any jurisdiction, either of the person of the defendant or the subject-matter of said suit. Nor does it contain any averments which are by law made tantamount to a statement of facts showing jurisdiction.

— Hon. W. W. Wood, Judge. (1) The instrument considered in connection with the plat showing sections, township and range, contains a patent ambiguity, and parol testimony is not admissible to alter, change, modify or explain it, nor to prove testator’s intention. I G-reenl. on Evid., p. 370; 2 Bom., Eq.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge., (1) The court erred in sustaining respondent’s demurrer to the evidence. The transaction was a joint venture in which, by express agreement, the loss if lany was to be shared equally between the parties, and, by implication of law, the profits, if any, were to be shared in like manner. Brigham v. Dana, 29 Yt. 1; Richards v. Grinnell, 63 la. 44; Whitcomb v. Converse, 119 Mass. 44.