Volume 150 — Missouri Appeal Reports

<p>Appeal from Cape Girardeau Circuit Court. — Hon Henry O. Riley, Judge.</p> <p>Plaintiff’s contributory negligence prevents his recovery in this case. Stepp v. Railroad, 85 . Mo. 229; Hayden v. Railroad, 124 Mo. 566; Kelsey v. Railroad, 129 Mo. 362; Hook v. Railroad, 162 Mo. 584; Sanguinette v. Railroad, 196 Mo. 466.</p> <p>(1) A traveler approaching a railroad crossing has a right to rely upon the railway company’s performance of its statutory duty to sound the whistle or ring the bell, thus warning him of the approach of an engine. Elliot v. Railroad, 105 Mo. App. 523; Donohue v. Railroad, 91 M'o. 357; Weller v. Railroad, 120 Mo. 635. (2) It is well settled law that when the statutory signals are omitted when approaching a street or public' crossing, and injury results, that a prima-facie case is made out and the burden is shifted to defendant to show that the omission of the signal was not the cause of the accident, and which it must do to the satisfaction of the jury. Donohue v. Railroad, 91 Mo. 357; Elliot v. Railroad, 105 Mo. App. 523; McCormick v. Railroad, 50 Mo. App. 112; Petty v. Railroad, 88 Mo. 306; Baker v. Railroad, 122 Mo. 533. (3) ‘It was not the duty of plaintiff to get out of his buggy and go forward to the crossing and look for a train before attempting to cross over, because of the fact that his view was obstructed; for while the view was obstructed there was no noise to prevent the plaintiff from hearing the signal of the engine for the crossing had one been given at the proper distance. Kelley v. Railroad, 88 Mo. 534; Petty v. Railroad, 88 Mo. 306.</p>

<p>JURISDICTION: Supreme Court: Scire Facias on Bond Given in Felony Case. As tlie action on an appearance bond is an ancillary proceeding to thie criminal prosecution, an. appeal by tbe sureties on sucbi bond from a judgment against tbem, though only for $500, must be to the Supreme Court, if the prosecution was for a felony.</p>

— Hon. Jas. D. Barnett, Judge. (1) The relation of one partner to another is exactly the same as principal and agent, and when one partner exceeds his authority, he cannot bind the partnership. Flannagan y. Alexander, 50 Mr. 51. (2) Partners, in the absence of their assent or subsequent ratification, cannot be bound by the acts of the co-partner done outside of the partnership business. Rimel y. Hayes, 83 Mo. 200.

— Hon. Jas. D. Barnett, Judge. (1) The parties disagreed as to the amount of the loss sustained and thereupon the appraisal clause of the contract became operative, and was so recognized by the parties in their appointment of appraisers, and thereafter under the pleadings until there had been an appraisal of the amount of the loss the claim had not matured. Stevens v. Ins. Co., 120 Mo. App. 88; Zalesky v. Ins.. Co., 108 Iowa 341, 79 N. W. 69; Williamson v. Ins.

Louis City Circuit Court. — Eon. Eugene McQuilUn, Judge. (1) The plaintiff did'not' claim in her answer that there was any money due to the defendant by reason of the promise or agreement of the garnishee to pay defendant in advance; and the declaration of law given by the court was therefore outside the issues in the case and has no legal basis to support it. Davis v. Knapp & Shea, 8 Mo. 657; Reinart v. Soap Co., 33 Mo. App. 27.

— Hon. Chas. D. Stewart, Judge. (1) The plaintiff is not entitled to a lien on the defendant railroad for the reason that it had no written contract with Rankin & Willard, sub-contractors, to perform the services rendered. JR. S. 1899, sec. 4239. Isenman v. Fugate, 36 Mo. App. 166; 2 Jones on Liens (1 Ed.), secs. 1265; Schroeder v. Galland, 134 Pa. St. 277, 19 Am. St. Rep. 691; Kelly v. Guar. & Accident Co., 97 Mo. App. 626; Curran v. Downs, 7 Mo.

Louis City Circuit Court. — Hon. Eugene MeQuillin, Judge. (1) The writing offered in evidence is a written contract which is binding upon defendant and which is subject to the parol evidence rule. 17 Cyc. 593; 17 Cyc. 600; Gill & Fisher v. Commission Co., 84 Mo. App. 456; Darnell v. Lafferty, 113 Mo. App. 282.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge.

Louis City Circuit Court. — Hon, Moses N. Sale, Judge. (1) The judgment should be reversed for lack of evidence to support the verdict. The total amount of lumber and materials shown, by the fourteen dray tickets in evidence, to have been delivered to the four houses is $471.56, while the total amount claimed to have been so delivered, and on which the lien account is based, is $926.45. The difference of $454.89 is unsupported by any evidence.

— Eon. Jos. J. Williams, Judge. (1) The court erred in refusing to instruct the jury, at the request of defendant, to find for it, at the close of plaintiff’s case and again at the close of the whole case, (a) Because the evidence offered on behalf of plaintiff did not show that the road or way in question was ever legally established, or that public work or labor had been expended thereon for a period of ten consecutive years.

— Hon. Chas. D. Stewart, Judge. ' ' (1) The lien was not filed within ninety days from January 6, 1907, the last item of work done for Rankin & Willard. It was filed April 12, 1907. There can, therefore, he no recovery in any event. Sec. 4241, R. S. 1899; Schmeiding v. Ewing, 57 Mo. 81; Grauss v. Hussmann, 22 Mo. App. 115; Murphy v. Murphy, 22 Mo. App. 19; Trust Co. v. Railroad, 54 Fed. 598.

Scott Circuit Court. — Eon. Henry C. Riley, Judge. (1). Where one or more assume to act as a corporation, or do business by a name distinctly implying a corporate existence, and sue iu such name, and such corporate existence is brought into question by an affidavit denying such corporate existence, it then devolves upon the party, or parties, suing to prove such corporation by competent testimony. E. S. 1899, sec. 746.

Louis Court of Criminal Correction.— Hon. Wilson A.- Taylor, Judge. There is nothing before this court but the record proper, and no error appearing therein, the judgment should be affirmed. State v. Nicholas, 193 Mo. 214; State v. Sparks, 191 Mo. 162.

<p>Appeal from Scott Circuit Court. — Hon. Henry O. Riley, Judge.</p>

<p>Appeal from Louisiana Common Pleas Court. — Eon. David E. Eby, Judge.</p>

— Non-. Chas. D. gteiourt, Judge. (1) The court should have sustained the demurrer to the evidence offered separately in each count by defendant. The evidence in the cause does not justify any verdict against the defendants. The lien claims do not conform to the lien law. The evidence shows that credits were intentionally omitted from each claim and no recovery can be had thereon. Cogan v. Railroad, 101 M.o. App. 179; Kasper v. Railroad, 101 Mo.

Louis City Circuit Court. — No». Wm. M. Kinsey, Judge. (1) If this proceeding is founded upon the contract of February 19, 1902, it goes without saying that in the first place no relief can be had against the appellant, James G. Owen, who Avas not a party to that contract and who derived no benefits from it, and no enforcement of the contract can be thought of in equity, or otherwise, unless the defendant Howe and the representatives of E. C. Owen wrere before the court.

<p>1. INTOXICATING LIQUORS: Sale to Minor: Defenses. It is no defense against a prosecution, under section 2179, Revised Statutes 1899, for selling to a minor without written permission of his parent, that the seller believed the buyer was of full age, or that his father gave his verbal consent, or after-wards ratified the sale in writing, or that the minor bought as an agent for an adult, if he did not disclose the fact to the seller, but if he did, the sale is to be taken as made to the principal and not to the minor.</p> <p>2. -: -: -. Neither is it a defense that the dealer was enticed into selling illegally by persons furnished money by citizens, so a sale might be induced and- the dealer prosecuted, although- this doctrine is offensive to one’s sense of justice.</p> <p>3. _: -: Evidence Held to Show Statute was Not Violated. In a prosecution for selling intoxicating liquor to a minor, in violation of section 2179, Revised Statutes 1899, the evidence showed'the prosecuting witness was a lad not eighteen years old, who had not been emancipated and was under the control of his father; that the father had received money to use in their occupation of detectives, from the Anti-Saloon League and had turned over part of it to the son; that when they arrived at defendant’s store the father told the son to go in and get some beer, not as a beverage, but as evidence of selling to minors — told the son to get defendant to sell to him, as that would be selling to a minor and a violation of law, and when defendant refused to sell at retail, they left, ■ but later concluded to go back and try defendant again; that the father believed the son was the one to be pushed to the front to get defendant to violate the law, and father and son had that agreement and understanding; that defendant brought the liquor out from the store and placed it in the buggy in which the father wa's sitting, the son having paid for it inside the store, the amount of which payment the father accounted for in his report of expenses. Held, the father was the directing and ruling spirit in the transaction and the boy was used as a decoy and that the liquor was sold to the father and not to the minor, within the meaning of the statute.</p> <p>4. PARENT AND CHILD-: Wages of Minor Presumably Go to Father. A father has the right to control his minor son, and where there is no proof he had emancipated the son or given his wages to him, such wages presumably go to the father.</p> <p>Concurring Opinion by Reynolds, P. J.</p> <p>5. CRIMINAL LAW: Detective Entrapping Defendant. Where the principal witness -for the prosecution testified he had been engaged for two years in trying to get people to violate the law he was partioeps eriminis, and one entrapped by such means should not be held guilty.</p>

Louis City Circuit Court. — Hon. Q-eorge H. Williams, Judge. (1) (a) Tliose parts of the answer of M. B., Wm. H. Jr., and Emily Clopton which pleaded the statute of two years limitation stated a good defense. All the installments became due within two years after their date if no installment had been paid, and suit should have been brought in two years from their dates. Construe’ tion Co. v. Coal Co., 205 Mo. 63; Burns v. Ballinger, 76 Mo. App. 58.

Louis City Circuit Court. — Eon. Daniel Or. Taylor, Judge. (1) Where a case is brought under the second subdivision of the statute and the defendant disclaims being a tenant or denies that plaintiff is his landlord, such act on the part of defendant will not render it necessary for plaintiff to prove notice or service of the same. The act of defendant in disclaiming tenancy had rendered such proof unnecessary on the pleading of plaintiff.

Louis City Circuit Court. — Eon. George E. Shields, Judge. (1) In an action against a telegraph company for negligence in failure to deliver a telegraph message, the addressee is entitled to recover all damages for loss of time and traveling expenses which result to him by reason of a failure to deliver the message. Bliss v. Telegraph Co., 30 Mo. App. 103; McCarty v. Telegraph Co., 116 Mo. App. 441; gee v. Telegraph Co., 51 Mo. App. 575.

<p>1. MASTER AND SERVANT: Injury to Servant: Failure of Master to Warn Servant of Danger. Neglect of duty may not be predicated against the master for an omission to warn, where the servant was apprised of the particular peril or where it was obvious to one and all alike, for the law does not require the doing of a wholly superfluous thing.</p> <p>2. -: -: -: Danger Known to Servant: Proximate Cause. Where a servant knew or might have known the particular danger which inflicted his injury, the fact that he was not instructed, about it by the master is immaterial, as the omission to instruct him was in no sense the proximate cause of the injury, inasmuch as he had prior thereto acquired the information from another source.</p> <p>3. -: -: -: -: Evidence Held to Establish Servant’s Knowledge. In an action hy a servant for injuries received in a bread cutting machine which he was operating, it is Jieid that the danger to be apprehended from putting his arm into said machine was open and obvious and was as well known to him as to. the foreman, and hence he could not recover on an assignment of negligence that the foreman failed to warn him of the danger of using said machine.</p> <p>4. -: -: Voluntary Selection of Dangerous Place to ■ Work: Contributory Negligence. Where there are two places open, which one may assume of hi's own free will in performing a task, it is his duty to select the safer of the two, and if he selects the unsafe one, which results in injury, he is guilty of contributory negligence as a matter of law-</p> <p>5. -: —1-: Foreman Shouting at Servant. In an action by a servant for personal injuries, the mere fact that the foreman shouted at him does not tend to show negligence on the master’s part, where it does not appear that it tended to disconcert or excite the servant and thus subject him to • an extra hazard.</p>

<p>Appeal from New Madrid Circuit Court — Non. Henry O. Riley, Judge.</p> <p>(1) This suit is based on the following sections of the statute. R. S. 1899, sec. 1103; Session Laws 1905, p. 106. (2) These sections have no application to the road in question in this case. It was never an established public road; but was at most a de facto road and the statute applies only to public roads, which the public authorities have established and recognized by working the same and exercising public control over them, which was never done in this case. R. S. 1899, sec. 9554; Sikes v. Railroad, 127 Mo. App. 326; State v. Macy, 72 Mo. App. 427; Henry v. Railroad, 44 Mío. App. Í00; Lincoln v. Railroad, 75 Mo. 27. (3) The plaintiff brought her suit under the statute, and the proof is clear that she had no cause of action under the statute, and the court ought to have sustained the demurrer to the evidence on the facts, but instead of doing so, not only overruled the demurrer, but refused to submit the question to the jury .as requested by defendant by instruction No. 2 offered by it, and this was error. Camp v. Railroad, 94 Mo. App. 272; Jackson y. Fulton, 87 M'o. App. 228; Lore y. Mfg. Co., 160 Mo. 608; Latapie-Vighaux y. Askew Sadd. Co., 193 Mo. 1; City of Clinton y. Henry' County, 115 Mo. 557; City of Pleasant Hill v. Dasher, 120 Mo. 675. (4) The statute, by prescribing the method of constructing crossings over public roads or town .streets, repealed the common law, and whatever action may be maintained now must be based upon a non-compliance with the statute in constructing the crossing, and the road must be a public road, recognized and worked as such by the public authorities. State v. Dalton & Fay, 134 Mo. App. 517; Young y. Railroad, 33 Mo. App. 509;' State v. Boogher, 71 Mo. 631; Railroad v. Railroad, 149 Mo. 245. (5) A publicly traveled road may be a de facto road, but not necessarily a road de jure. The distinction between the two classes of highways is well recognized. Sikes v. Railroad, 127 M:o. App. 326; Dow v. Railroad, 116 Mo. App. 555; Berry y. Railroad, 124 Mo. 436. (6) The damages assessed by the jury are excessive and disproportionate to the injury to plaintiff, and obviously the result of passion, prejudice or undue sympathy for her, and when that is tlie case appellate courts will set the verdict aside. Phippin v. Railroad, 196 Mo. 821.</p> <p>There can be no question but that the railroad was required to maintain the crossing. Moberly v. Railroad, 17 Mo. App. 518; Hill v. Railroad, 49 Mo. App. 520; Lincoln v. Railroad, 75 Mo. 27; Kimes v. Railroad, 85 Mo. 611.</p>

<p>Appeal from St. Louis City Court of Criminal Correction. — Ron. Wm. L. Fitzgerald, Special Judge.</p>

Louis City Circuit Court. — Hon. Robert M. Foster, Judge. (!) Tax liens take priority in the reverse order of other liens, namely: “The last shall be first and the first last.” In the matter of priority there is no distinction between the'lien of general taxes and that of special taxes for improvements. The liens of special tax-bills also take priority in the inverse order of their date. Burke v. Lukens, 12 Ind.

Louis City Circuit Court. — Eon. Jas. IS. Withrow, Judge. (1) The petition counts upon an unlawful arrest as constituting a directed trespass. (2) The origin of the arrest-functions vested in the police officers of the city of St. Louis. Acts 1861, 149. (3) The nature and extent of that function. R. S. 1899, sec. 6212; State v. Grant, 76 Mo. 236; State v. Holcomb, 86 Mo. 380; State v. Hancock, 73 Mo. App. 19; State v. Boyd, 108 Mo.

Louis City Circuit Court. — Eon Eugo • Muench, Judge. (1) Defendant’s demurrer to plaintiff’s evidence should have been sustained, there being no evidence that an account had been stated. Railroad v. Com. Co., 71 Mo. App. 299; Lustig v. Cohen, 44 Mo. App. 274; Marmon v. Waller, 53 Mo. App. 610. (2) The account given-plaintiff by Mr. Baker did not constitute a stated account. Marmon v. Waller, 53 Mo. App. 610; Railroad v. Com. Co., 71 Mo. App. 299; Kenneth Inv.

Louis City Circuit Court. — Eon. Virgil Rule} Judge. Statement of account, filed before justice of tbe peace must be sufficient to identify tbe particular mer* chandise sued for and to bar any other action on account of the same demand, and an account for merchandise filed before a justice of the peace which did not show the dates at which the merchandise was sold nor the nature of the articles so that they could be identified was insufficient to support a judgment.

<p>1. INDICTMENTS AND INFORMATIONS: Appellate Practice: Information or Indictment May be Attacked in Appellate Court for First Time. Even without a motion for a new trial or in arrest, advantage may be taken of serious and substantial defects in an indictment or information in the appellate court for the first time, or by the appellate court of its own motion.</p> <p>2. -: When Necessary to Negative Exceptions In Statute, if the ingredients constituting an offense denounced by statute are capable .of exact definition, without reference to an exception or proviso, such reference may with safety be omitted from the indictment or information, since the matter contained in the exception or proviso in such case is not descriptive of the offense but only a matter of defense to be brought forward by the accused; and where the statute creates an offense not limited to a particular class of persons or conditions and not upon such actions only as are committed by particular persons or in a particular way, the excusatory defense is not required to be negatived by the written accusation.</p> <p>3. STATUTES: Criminal Statutes: Construction. In considering a statute denouncing an offense, the evil designed to be met and the remedy sought must be kept in mind.</p> <p>4. PHYSICIANS AND SURGEONS: Practicing Without License: Statute Construed: Indictments and Informations: Negativing Exceptions. Act March 12, 1901 (Laws 1901, p. 208), section 5, provides that any person, except physicians now registered, practicing medicine in the state, and any person attempting to treat the sick without first obtaining a license from the state board, shall be deemed guilty of a misdemeanor. Act March 22, 1907 (Laws 1907 p. 358), amends said section 5, to provide that any person practicing medicine in this state, and any person attempting to treat the sick, and any person representing or advertising himself to be authorized to treat the sick, without a license from the state board, shall be deemed guilty of a misdemeanor: provided that physicians registered on or prior to March 12, 1901, shall be regarded as registered physicians for the purposes of the act. Meld, that the proviso to the section as amended in effect constitutes an exception in the enacting clause of the statute, which it ife necessary to negative in an indictment thereunder.</p> <p>5. CRIMES AND PUNISHMENTS: Criminal Practice: Indictments and Informations: Negativing Exceptions: Proving Negative. “When the subject-matter of a negative averment in an indictment or information lies peculiarly within the knowledge of the defendant, the averment is taken as true unless disproved by him.</p> <p>6. PHYSICIANS AND SURGEONS': Practicing Without License: Statute Construed: Indictments and Informations: Negativing Exceptions. An indictment under section 5, Act March 12, 1901 (Laws 1901, p. 208), as amended by Act March 22, 1907 (Laws 1907, p. 358), making it an offense for one to treat the sick or do certain other acts unless he has a license from the state board, or was a registered physician March 12, 1901, need not negative section 9 as amended by Act March 21, 1903 (Laws 1903, p. 240) and Act April 4, 1907 (Laws 1907, p. 360), providing that the act is not intended to prohibit gratuitous treatment, this being a separate proviso not embodied in the enacting section.</p> <p>7. -: -: Indictment and Information: Indefiniteness. It is bad and careless pleading to allege in an information that defendant practiced medicine, when he did not have a license from the board of health, without stating which board of health is referred to.</p> <p>8. -: -: -: Not Necessary to Allege Names of Patients. An indictment under section 5, Act March 12, 1901 (Laws 1901, p. 208), as amended by Act March 22, 1907 (Laws 1907, p. 358), for practicing and advertising as a physician, without being registered or having a license, need not give the names of the patients, nor describe the means of advertising.</p>

Louis City Circuit Court. — Hon. Geo. H. Williams, Judge. (1) The court erred in striking out all the allegations of the answer, and in rejecting all the evidence offered in support thereof, and of the counterclaim, for these reasons: The records of legislative bodies are not conclusive, and it will only be conclusively presumed that the two houses of the Assembly did what their journals say they did, no more, no less.

— Hon. David 3. Eby, Judge. The summonses were properly sent and properly served and the returns of the sheriffs of Coles county, Illinois, and Van Bwren county, Iowa, are in all respects in conformity with the law and are sufficient. E. S. 1899, secs. 577, 582.

Louis City Circuit Court. — Son. Qeorge H. Hitchcock, Judge. (1) The court erred in overruling the motion to quash the original return of the special constable to the alias summons, as it was the only return then properly before the court, and was insufficient on its face to confer jurisdiction. This return is so-palpably insufficient no citation of authorities is necessary to show that there is no compliance with sec. 3862, R. S. 1899.

Louis County Circuit Court. — Eon. John W. MoElhinney, Judge. The provision of the contract that all payments should be made upon certificates of the architect did not purport to be, and could not reasonably have been intended as, prohibitive of payments without such certificates. Gillis v. Care, 177 Mass. 589; Smith v. Molleson, 148 N. Y. 250; Fuller v. Doyle, 87 Fed. 693; Allen v. W. S. Co., 93 S. W. 44; 30 Am. and Eng. Ency.

Louis City Circuit Court. — Hon. Euxjene McQuilHn, Judge. This transaction claimed by plaintiff to have occurred concerning this premium, was one merely personal between the insured, herself and Scott, not in the latter’s capacity of agent for the company.and remedy of respondent is not against appellant but rather against the person with whom such agreement, if any, was made. Dircks y. Ins.

— Eon. R. 8. Ryors, Judge. (1) If tbe injury may have resulted from one of tlie two causes, for one of which and not the other, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result, and if the evidence leaves it to conjecture, the plaintiff must fail in this action. Warner v. Railroad, 178 Mo. 125; Browning v. Railroad, 106 Mo. App. 729; Goransson v. Mfg.

Original Proceeding by Mandamus. (1) Mandamus is tbe proper remedy. State ex rel. y. Grimm, 220 Mo. 489. (2) The case was properly certified- by the justice to the circuit court. Sec. 3951', Revised Statutes 1899; Kelly’s Justices’ Jurisdiction, sec. 81. (3), There is no other adequate remedy accessible to petitioner, there being no final judgment in the case, from which an appeal could be taken. Boggess v. Cox, 48 Mo. 278; Bick v. Umstattd, 137 Mo.

— Eon. Robert M. Foster, Judge. (1) A bank is not liable to a depositor for interest upon a deposit unless there is a contract between them calling for payment of interest. 3 Am. and Eng. Ency. Law (2 Ed.), p. 829; Zane, Banks and Banking, sec. 159.

— Hon. Henry G. Riley, Judge. (1) Mr. Pinnéll’s insurance was null and void November 30tk. Held: only as the natural inference of law would be for the purposes for which it was sent, that to pay the January assessment. Keeping the money reinstates the policy. Reed v. Bankers’ Union, supra; Andrus y. Ins. Co., supra; Leech y. Order of R. R. Telegraphers, 130 Mo. App. 19.

— Hon. Henry G. Riley, Judge. (1) Instruction number 2, given by the court for plaintiff, ivas not warranted by the evidence in the case. Plaintiff, himself, testified that it was necessary for the conductor do do what he did to get him off the train. The. conductor employed no unnecessary force. Grayson v. Transit Co., 100 Mo. App. 60; Bolles v. Railroad, 134 Mo. App. 696; White v. Railroad, 132 Mo. App. 339; Hoffman v. Gill, 102 Mo.

<p>1. CRIMES AND PUNISHMENTS: Criminal Practice: Witnesses: Impeachment of Defendant. The general rule is, that the defendant in a criminal prosecution, who testifies in his own behalf, is subject to impeachment the same as any other witness.</p> <p>2. -: -:--: -: Prior Conviction of Misdemeanor. Under section 4680, Revised Statutes 1899, it is competent to impeach the defendant in a criminal case, who testifies in his own behalf, by showing he had theretofore been convicted of a misdemeanor, and questions directed to such impeachment may be propounded in the cross-examination.</p>

— Hon. Jas. D. Barnett, Judge. (1) The decision and judgment of the Supreme Court in this cause in 205 Mo. 328, remanding the cause, opened the case for amendments. Wollman y. Leo wen, 108 Mo. App. 581; Needles y. Burk, 98 Mo. 474. (2) Joining the Chicago & Alton Railroad Company as party defendant, same being a new consolidated company made up of the Chicago and Alton Railway Company et al., does not have effect to set up a new cause of action. Kinion v. Railroad, 39 Mo.

Louis City Circuit Court. — Eon. Jas. E. Withrow, Judge. (1') Parties mi juris bave the right to make any contract which is not contrary to law or public policy and it is the duty of the courts to enforce contracts and not to be hypercritical to seek excuses for abrogating them.

Louis City Circuit Court. — Hon. Moses ÍV. Sale, Judge. (1) Tbe original return of service on the official in charge of “defendant’s usual business office” was fatally deficient under the law requiring service on the person in charge of the “principal office of such company,” as defendant. R. S. 1899, sec. 8092; Thomason y. Ins. Co., 89 S. W. Rep. 564.

— Eon. Robert G. Ranney, Judge. (1) Gage’s petition for a dramshop license, being an application under section 2997, R. S. 1899, the county court in passing on the qualifications of his signers was not bound by the “last previous annual assessment and vote of the town.” R. S. 1899, sec. 2997; Scarrit v. Jackson County, 89 Mo. App. 593. (2) Relators sought to have the action of the county court in receiving certain testimony and rejecting other, reviewed by the court.

<p>1. JURISDICTION: Supreme Court: Divorce: Petition Demanding Alimony In the Sum of $50,000. Where a petitioner for a divorce demands both in her petition and in her reply alimony in gross in the amount of $50,000, the Supreme Court has jurisdiction of the case on appeal.</p> <p>2. -: -: -: -: Question of Jurisdiction Not Raised by Counsel. Although the question as to the appellate jurisdiction of a divorce case was not presented by counsel, yet, since the amount of alimony sued for was apparent on • the record and sufficient to give the Supreme Court jurisdiction, the Court of Appeals was bound ex mero motu to take notice of such question.</p> <p>3. -: -: Amount in Controversy: How Ascertained. To determine the appellate jurisdiction of a case, the court will not be controlled by a mere colorable amount in controversy, but may look to the whole record to ascertain the real amount in controversy.</p> <p>4. -: -: -: Divorce: Claim for Alimony. Where, in a suit for divorce, there was evidence showing that the value of respondent’s property was largely in excess of the amount of alimony claimed, such claim is held not to be a mere colorable one in order to give the Supreme Court jurisdiction of the case.</p>

Francois Circuit Court. — Hon. Chas. A Killian, Judge. (1) Tbe court erred in overruling the demurrer to the evidence for the reason that, under the allegations of the petition, it was essential to a recovery by plaintiff that he prove defendant permitted the wire to be covered over with mud, etc., which he failed to do. It is elementary that plaintiff will be alloAved to recover on the cause of action counted on only.

— Hon. John P. Butler, Judge. (T) The. modification by the court of instruction number 6 asked by the defendants by adding to said instruction the proviso at the end thereof, which proviso we will hereinafter set out in italics in said instruction, we assign as error not only in said instruction 6 but in all the other modifications of defendants’ instructions carried out, also in those given by the plaintiff.

Louis City Circuit Court. — Eon. J. Eugo Grimm, Judge. (1) (a) Plaintiff assumed the risk of the accident and consequent injuries, (b) Plaintiff! was guilty of contributory negligence. MacGrath y. Transit Co., 197 Mo. 97; Clancey v. Transit Go., 192 Mo. 615; Pohlman y. Car & Foundry Co., 123 Mo. App. 219; Wendall y. Railroad, 100 Mo. App. 556; Fugler v. Bothe, 117 Mo. 475; Marshall y. Hay Press Co., 69 Mo.

Louis Circuit Court. — Eon. Geo. O. EitchoocJc, Judge. (1) Where a release has been executed and the consideration therefore received, au action cannot be maintained on the cause of action released, -without returning, or offering to return, the consideration received. The law of Missouri is settled that the. consideration must- be returned, or an offer of return made within a reasonable time after discovery of fraud by plaintiff and before institution of a suit.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The judgment should be reversed, as the verdict was against the great weight of the evidence and for the wrong party, and the issues were not submitted to the jury by proper instructions. Morelock v. Railroad, 112 Mo. App. 640; Schmidt v. Rankin, 193 Mo. 254.

Louis City Circuit Court. — Hon. Virgil Rule, Judge. (1) Tlie petition does not state facts sufficient to constitute a cause of action, and the demurrer thereto should have been sustained, for any or all of the following reasons: (a) It-does not properly allege that the accident, resulting in the death of plaintiff’s mother, was caused by the negligence and carelessness of defendant’s agents. Breen v. St. Louis Oo-op. Co., 50 Mo. App. 414; Norville v. Railroad, 60 Mo.

Louis City Ciraiit Court. — Hon. George G. IIitchcocJo} Judge. (1) By the express language of the lease, defendant is to use the leased premises for general business purposes; and as lessee the defendant also agreed to keep the premises in good order and repair at the lessee’s expense and in using the premises to conform to and observe all law's or ordinances of the city of St. Louis and State of Missouri.

Louis City Circuit, Court. — Hon. Hugo Muench, Judge. (1) The petition was insufficient, and evidence thereunder should not have been admitted. It failed to state that the wire guard was dangerous; that the same was wrongfully or improperly constructed, save that it states the same were “near to and on” the sidewalk, which is so inconsistent as to render the two conditions at the same time a physical impossibility.

Louis City Circuit Court. — Hon. M. N. s Bale, Judge. (1) Covenants in a deed restricting the character of buildings to be erected should be fairly and reasonably construed so as to carry out the evident purpose of the restriction. 1 Jones on Eeal Property, sec. 735; Sanders v. Dixon, 114 Mo. App. 229; MacGregor y. Linney, 27 Ohio Cir. 490; Meigs v. Milligan, 177 Pa. St. 74; Schenck v. Campbell, 11 Abb.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) The second count of the petition fails to state facts sufficient to constitute a cause of action. Each separate statement must of itself be a complete cause of action. Phillips on Code Pleading, sec. 203, p. 182.

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) The relation of landlord and tenant under the evidence never.existed, and there could be no recovery for debt or rent under the lease. Defendant never was in or had possession of the premises. Cherokee Assn. v. Land Co., 138 Mo. 394; Kean v. Kolkschneider, 21 Mo. App. 539.

— Hon. David H. Eby, Judge. (1) The written finding made by the court does not comply with, nor meet the requirements of, section 695 upon the request in writing being made for a separate finding of facts found separately from the conclusions of law. Hamill y. Talbot, 72 Mo. App. 32.

Louis Comity Circuit Court. — Hon. John W. MoElhinney, Judge. (1) The court erred in refusing to permit defendant to introduce in evidence tbe rules adopted and in force by the various race courses upon which defendant was racing his horses and plaintiff’s son was riding. (2) An act of a servant which injures or has a tendency to injure his master’s business, interest or reputation will justify his dismissal. Newman v. Reagan, 65 Ga. 512; Kidd v. Pill Co., 91 la. 261.

Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge. (1) The services of a trustee are paid according to the amount of work and responsibility connected with trust estate. Abes v. Scutlder, 11 Mo. App. 168; Kemp v. Foster, 22 Mo. App. 643. (2) A trustee has the right, power and authority to employ a real estate agent to rent houses and collect the rents. Finley v. Schlueter, 54 Mo. App. 455; Perry on Trusts, 912.

— Eon. David E. Eby, Judge. (1) There was no evidence whatever upon which 'to base the verdict; nothing to show that Clara B. Sis-son owned or had any interest whatever in the horses replevied. (2) Caldwell had a right to bring this suit even though he had no -financial interest in the note. Nicolav v. Fritschle, 40 Mo. 67; Block v. Dorman, 51' Mo. 31; Snider v. Express Co., 77 Mo. 523. Assignee of note may maintain action. Willison v. Smith, 52 Mo.

Louis City Circuit Court. — Eon. George E. Williams, Judge. (1) The justice of the peace did not have jurisdiction to enter a judgment against the garnishee, until there wag a final judgment entered against the defendant in the case. Section 3472, Revised Statutes 1899. ,'(2) The record of a justice of the peace may always be corrected by a rule on the justice. Section 4068, Revised Statutes 1899; Norton v. Porter, 63 Mo. 345 ; Hill v. Patterson, 34 Mo. App. 169.

— -Hon. Charles D. Slewart, Judge. Evidence of a “road crossing east of the depot,” as spoken of by one witness, and of “a crossing near the east end of the depot platform,” as stated by the other witness might be admitted to be true, and yet snch. crossing might not be “a traveled public road,” as it is designated in the statute. Hodges v. Railroad, 71 Mo. 50; Bauer v. Railroad, 69 Mo. 219; State v. Railroad, 19 Mo. App. 104; Parish v. Railroad, 63 Mo. 284. .

Louis ‘Court of Criminal Correction. —Hon. Wilson A. Taylor, Judge. The information charges that defendant willfully and unlawfully retailed and sold cocaine without the written prescription of a legally authorized physician or dentist, licensed under the laws of Missouri, prescribing the use of said cocaine for said-John Jackson. This information does not charge an offense under the law.

Louis City Circuit Court.-— Hon. Hugo Muench, Judge. (1) Only two petitions (not tliree) have in this case been adjudged insufficient within the meaning and intent of seo: 623, R. S. 1899. Spurlock v. Railroad, 93 Mo. 13; Wilkinson v. Goodin, 71 Mo. App. 394; Antonelli v. Basile, 93 Mo. App. 138. (2)- Sec. 623, Revised Statutes, does not authorize a judgment on the merits, even if three petitions had been adjudged insufficient. Gordon v. Burris, 125 Mo. 39.

Louis Gity Circuit Court. — Eon. E%igo Grimm, Judge. Instructions which are likely to mislead and confuse the minds of the jury should not he given. Clarke v. Kitchen, 52 Mo. 316; Belt v. Goode, 31 Mo. 128; Harrison v. Franklin, 126 Mo. App. 366; Neff v. City of Cameron, 111 S. W. 1139’; State v. Pettitt, 119 Mo. 410; Stegman v. Berryhill, 72 Mo. 307; Shortal v. St. Joseph, 104 Mo. 114; State v. Meals, 184 Mo. 244. Error is presumed to be prejudicial. Clark v. Fairley, 30 Mo.

<p>Appeal from St. Louis Court of Criminal Correction.— Eon. Wilson A. Taylor, Judge.</p>

<p>1. COSTS: Principal and Surety: Judgment for Principal Discharges Surety. A judgment for the principal in a cost bond . conditioned on the payment of all costs that may accrue in the action is a conclusive discharge of the sureties on the bond.</p> <p>2. PRINCIPAL AND SURETY: Judgment Against Principal: Not Conclusive Against Surety, When: Evidence. The general rule is, that a judgment against a principal is not conclusive against the surety, but is only prima facie proof of the breach of the contract and his liability thereunder, and ordinarily such judgment is received in evidence for such prima facie purposes and the surety is permitted to defend by showing a good defense to the action, which might have been asserted by the principal.</p> <p>3. -: -: Conclusive Against Surety, When. Where sureties undertake to pay a particular judgment or to do something else dependent upon the result of 'specific litigation then pending, such as to pay the costs adjudged therein or to answer for the conduct of the party as to a charge laid on him by law, the judgment against the principal in the undertaking is, in the absence of fraud or collusion, conclusive on the 'surety.</p> <p>4. COSTS: Cost Bond: Nature of: Principal and Surety. A cost bond is i-n the nature of a recognizance executed by the sureties, who, by executing and filing the same, • voluntarily become parties to the record in the cause.</p> <p>5. RECOGNIZANCES: Nature Of: Principal and Surety. A “recognizance” is an obligation of record entered into before a court or other duly authorized officer, conditioned to do some act required by law, which is therein specified.</p> <p>6. COSTS: Cost Bond: Nature of Surety’s Obligation: Principal and Surety. Under section 2259, Revised Statutes 1909, declaring that the surety on a cost bond binds himself to pay all the costs of the action, costs accrue, if at all, and are adjudged against the parties to the action, and the obligation of the ■ surety is to pay such costs as are adjudged against the principal.</p> <p>7. PRINCIPAL AND SURETY: Construction of Contract. Although the obligation of the surety in a bond is strictisswni juris,-the rule for construing a contract of suretyship is the 'same as is applied to the interpretation of other instruments, and the court will resort to the same aids and invoke the same canons of construction as are applied to other contracts.</p> <p>8. - COSTS: Principal and Surety: Judgment Against Principal: Rights of Surety. A surety in a cost bond may file a motion tQretax the costs, though he is not mentioned in the judgment, and he may appeal from a judgment against the principal alone.</p> <p>9_ _; -; -: Conclusive Against Surety. Under section 2259, Revised Statutes 1909, declaring that a surety in a cost bond binds himself to pay all the costs in the action, a surety in a cost bond executed by a plaintiff and the surety, stipulating that “we . . . agree to pay all costs that have accrued, or may accrue,” in the action, is bound to abide the result of a taxation of costs in the litigation between the parties thereto, and a judgment for costs against plaintiff determines the costs for which the surety is responsible, and is con-elusive against him, even though it is not entered against him personally.</p> <p>10. -: -: -: -: Due Course of Law. Due course of law assures to every person his right to a day in court and of a notice of a hearing and an opportunity to defend, but one who is a party to the record, by virtue of his having become a surety in a cost bond voluntarily submits himself to such judgment as shall be given against plaintiff for costs, subject to his right to move for a retaxation.</p> <p>11. -: -: -: -: Collateral Attack. Where a surety in a cost bond fails to move to retax costs against his principal or to appeal from an adverse ruling, the judgment for costs is conclusive on him.</p> <p>12. -: -: Assignee of Witness May Maintain Action for Fees. A witness, in whose favor fees are taxed as costs, may maintain an action therefor -against a surety on the co'st bond, and the assignee of such witness may likewise maintain such an action.</p>

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. Plaintiff is not entitled to have this case reviewed here, as he saved no exception to the ruling of the court in overruling the motion to set aside the nonsuit and for a new trial.

<p>Appeal from St. Francois Circuit Court. — Ho». Chas. A. Killian, Judge.</p> <p>(1) The county court can have no jurisdiction over any public highway (call it road, street or alley) unless the same be 30 feet wide. Secs. 9410', 9411, 9472, R.- S. 1899. (2) No individual can by either statutory dedication or common law dedication compel the county court to accept a public highway (be it road, street or alley). Landis y. Hamilton, 77Mo. 563; St. Louis v. St. Louis University, 88 Mo. 158; Rosenberger v. Miller, 61 Mo. App. 426. (3) The county court can have no authority to make any order respecting said public highway until its acceptance by user. Herman on Estoppel and Res Adjudicata, sec. 1142; 2 Beach on Pub. Corp., sees. 1449, 1451, 1456 and note; Becker v. City of St. Charles, 37 Mo. 13.; Kemph v. Collins, 97 Mo. 644; Brink v. Collier, 56 Mo. 160'; Putnam v. Walker, 37 Mo. 600; Milling Co. v. Riley, 133 Mo. 574; Longworth v. Ledwic, 165 Mo. 221; St. Louis v. St. Louis University, 88 Mo. 156; Vassen v. Dantel, 116 Mo. 379; Baker v. Yianderberg, 99' Mo. 387; Landis v. Hamilton, 77 Mo. 554; McLemon v. McNeeley, 56 Mo. App. 56.1; Rosenberger v. Miller, 61 Mo. App. 426; McGrath v. Nevada, 188 Mo. 107; Rutherford v. Taylor, 38 Mo. 318; Baker v. Squire, 143 Mo. 92; Pierce v. Chamberlain, 82 Mo. 618. (4) Whatever rights may accrue to purchasers of lots in a platted addition by estoppel or otherwise, can only be asserted by those who are in priyity with the person against whom such rights are asserted. Becker v. St. Charles, 37 Mo. 13; Putnam v. Walker, 37 Mo. 600; McLemore v. Mc-Neeley, 56 Mo. App. 556; 9' Am. and Eng. Ency. Law (2 Ed.), pp. 57, 65. (5) The order of the county court under which the road overseer was proceeding to act was made without jurisdiction on the part of the county court, hence, in junction will lie. MePike v. West, 71 Mo. 199; Harris v. Twp. Board, 22 Mo. App. 463; Echelkamp v. Schrader, 45 Mo. 505; Weigle v. Walsh, 45 Mo. 561; Taylor v. Todd, 48 Mo. App. 556; State v. Kercheval, 65 Mo. 682; Palmer v. Crisle, 92 Mo. App. 512; Turner v. Stewart, 78 Mo. 80; Bailey v. Wade, 22 Mo. App. 186; Monroe v. Crawford, 163 Mo. 180; Carpenter v. Grisham, 59 Mo. 250; Eosenberger v. Miller, 61 Mo. App. 429. (6) It must be apparent that the dedication pleaded in defendant’s answer did not conform to the statute, hence can only be treated as a common law dedication and no acceptance having been pleaded could not create a public highway. See authorities under point 3.</p> <p>(1) The county courts have control over the streets, avenues, lanes and alleys of unincorporated towns in their respective counties. E. S. 1879', secs. 6559, 6573; E. S. 1899, sec. 8959; Eeid v. Board of Education, 73 Mo. 295; Price v. Town of Breckenridge, 77 Mo. 447. (2) Where owners of lands subdivide and lay off land into town lots and blocks with streets, avenues and alleys, and cause a plat of the same to be made, acknowledged and recorded, particularly describing the parcels-of land to be used for streets, avenues, alleys and lanes, is a dedication of the streets, avenues and alleys, to the public. Hannibal v. Draper, 15 Mo.-634; Hannibal v. Draper, 36 Mo. 332; Hymers v. Branch, 6 Mo. App>. 514; Heitz v. St. Louis, 110 Mo. 618; Baker v. Yanderburg, 99 Mo. 378. (3) Where the owner of land dedicates streets, avenues and alleys to the public by having a plat duly made, signed, acknowledged and recorded, is estopped from afterwards making any claim to such portions of said land as has been dedicated to public use. Eogan v. McCay, 29 Mo. 356; Price v. Town of Breckenridge, 78 Mo. 447.</p>

<p>Appeal from St. Louis City Circuit Court. — No». Robert M. Foster, Judge.</p> <p>(1) The court erred in permitting the introduction of any evidence or allowing a hearing on the motion to assess damages on the injunction bond without bringing in Konta by notice. The notice to Tenbroek was not notice to Konta. After the lapse of the term at which the dissolution of an injunction occurs, notice to the opposite party of a motion to assess damages is necessary. Roberts v. Imp. Co., 126 Mo. 460 ,- Hoffelman v. Franke, 96 Mo. 534; Smith v. Kander, 85 Mo. App. 35; Jackson v. Fulton, 87 Mo. App. 238; Wilson v. Russler, 91 Mo. App. 274.</p> <p>(1) Konta was duly served by notice. ■ The no-, tice to Tenbroek, who was Konta’s attorney, was notice to Konta. It is not necessary that the principal in this bond be brought in for the reason that the principal Konta and Joseph A. Duffy, appellant herein, bind themselves, their heirs, executors and administrators jointly and severally. But Konta- appeared and by his agent Duffy took an appeal at the first-trial of this cause, so that after all Konta really was in. Sutliff v. Montgomery, 115 Mo. App. 592; Fisse v. Einstein, 5 Mo. App. 78; Fears v. Riley, 147 Mo. 453; Dorris v. Carter, 67 Mo. 544; R. S. 1899, sec. 889.</p>

<p>1. APPELLATE PRACTICE: Inadequacy of Relief to Respondent: Complaint by Appellant. The general rule that a party is not entitled to a reversal of the judgment because more favorable than the case asserted justifies and that defendant cannot urge that the verdict for plaintiff is less than he is entitled to applies only where the issues warranted the jury-in reckoning with the equities involved and a verdict was awarded accordingly.</p> <p>2. -: -: -: Suits on Express Contracts for Specified Sum. Where, in an action on an express contract for a specified sum, the issue raised by the answer denying the contract was whether there was a contract, so that plaintiff, if entitled to recover, was entitled to recover the specified sum, a verdict for less than, the specified sum_ will be set aside on appeal by defendant, because it does not respond to the precise issue, for, unless there was a contract for the full amount, no right of recovery existed.</p>

— Hon. Henry G. Riley} Judge. (1) If the objection of defendant to the admissibility of the will had been sustained and its ex parte statements excluded, there would have remained absolutely no evidence of the execution or existence of any note or indebtedness and the demurrer to the evidence would necesarily have been sustained.

Common Pleas Court. —Eon. Robb. G. Romney, Judge. (1) The court erred in admitting in evidence the Colter-Alt correspondence: This, correspondence constituted a complete written contract. Brewington v. Mesker, 51 Mo. App. 348; 9 Cyc. 247. Said contract does not cover the subject matter of this suit or pertain to any issue herein. The situation of the parties harmonizes with this interpretation. Hahs v. Eailroad, 126 S. W. 527; 9 Cyc. 587.

Louis- City Circuit Court. — Hon. Matt. G. Reynolds, Judge. (1) The jurisdiction of a justice of the peace to enforce a claim of mechanic’s lien is special and every requisite to its exercise must appear on the face of the record. Heimberger v. Harrison, 83 Mo. App. 544; Ruckert v. Richter, 127 Mo. App. 668. No presumption will be indulged in favor of the jurisdiction of a justice of the peace. Bick v. Lanham, 123 Mo. App. 268; State v. McCord, 124 Mo. App. 68.

Louis City Circuit Court. — How. Hugo Muench) Judge. (1) The circuit court erred in dismissing plaintiff’s petition, as under the law and evidence she is entitled to the relief prayed for in her petition. (2) The defendant, under the circumstances of this case, absented himself from plaintiff without reasonable cause. Grove v. Grove, 79 Mo. App. 142; Freeman v. Freeman, 94 Mo. App. 504; Hamberg v. Hamberg, 126 S. W. 808.

Louis City Circuit Court. — How. Hugo Muench, Judge. (1) There was no error in giving defendant’s fourth instruction. Quinn v. Railroad, 218 Mo. 545. (2) Even though that instruction be error, it is harmless because the verdict is for the right party. Hess v. Railroad, 127 Mo. App. 304.

Louis City Circuit Court. — Hon. Moses N. Sale) Judge. (1) In a case where there is only one proponent or contestee of the will the admissions of such person are admissible to avoid the will. Teckenbrock v. McLaughlin, 209 Mo. 533; Clark v. Morrison, 25 Pa. St. 546; Wood v. Carpenter, 166 Mo. 485; Meier v. Buchter, 197 Mo. 69.

<p>1. SALES: Contract'. Construction. On July 8, 1907, plaintiff and defendant contracted for the future shipment of fifty cases of cherries, providing that if plaintiff was prevented from making a delivery of any or all of the goods, by failure of crop or accident, he should not be responsible for any loss, and further providing that plaintiff should ship and the buyer accept when the goods were ready, except as otherwise provided, and in case of a short pack defendant should accept a pro rata share. It could not be determined before July 15th as to how large the season’s pack would be. There was a “short pack,*’ and on October 5th a fifty per cent shipment was made. Held, that the contract contemplated a shortage in the 1907 crop, and that plaintiff acted within his contract rights in sending the pro rata shipment.</p> <p>2. -: Delivery of Goods Not Contracted for: Rights of Buyer. Under a contract between plaintiff and defendant for the future delivery of cherries, providing that a pro rata shipment could be made in case of a short 1907 crop, where plaintiff made a shipment of cherries grown in a prior year, they need not have been accepted.</p> <p>3. CONTRACTS: Performance: Motive. The motive actuating a party to a contract in availing himself of the provisions of the .contract is wholly immaterial, so long as he acts within the contract.</p>

— Eon. G. D. Stewart, Judge. (1) The plaintiff’s refused instruction No. 1, in the nature of a demurrer to all the evidence, should have been given. Christy v. Hughes, 24 Mo. App. 275; Stillson v. Railroad, 67 Mo. 671; Sanderson v. Holland, 39 Mo. App. 239'; Cooley on Torts, pp. 683, 684; Russell v. Columbia, 74 Mo. 494; Wilmott v. Howard, 89 Ver. 447; Santer v. Railroad, 66 N. T. 501; Railroad v. Buck, 96 Ind. 351; West v. Martin, 31 Mo. 375; Hyme v. Erwin, 55 Am.

<p>1. APPEAL AND ERROR: Exceptions: Review of Rulings Against Non-Appealing Party. Defendants filed a motion to strike out the amended petition, which motion was overruled. Defendants then filed a demurrer to the petition and the demurrer was sustained. Plaintiff appealed, but defendants saved no exceptions to the action of the court in overruling its motion to strike out, neither did they appeal. Held, that the action of the trial court on the motion was not before the appellate court for review.</p> <p>2. JUSTICES’ COURTS: Practice: Pleading: Appeal to Circuit Court. On appeal from a justice’s court to the circuit court, where an amended statement is filed in the circuit court, the defendant is not required to answer or demur, but without any written plea is entitled to make any defense that was open to him in the justice’s court.</p> <p>3. _; _; -: -: Demurrer. It has been held many times in this state that a demurrer is not known in pleadings before a justice of the peace, and that a demurrer is not the proper manner to test the sufficiency of the pleadings in a case originating before a justice of the peace.</p> <p>4 _: _; -: -: Sufficiency of Statement. In cases appealed from a justice’s court to the circuit court, the sufficiency of the amended .statement filed in the circuit court is to be determined by the requirements of the law as to the statement filed in the justice’s court.</p> <p>5. -: --: -: Filing Instrument Sued on. In suits commenced before a justice of the peace, the law requires, when plaintiff’s case is based on an instrument executed by the other party, that the same shall be filed and no other pleading .shall he required. When a statement is filed with the instrument the latter is the basis of the action and the statement is ignored.</p> <p>6. PLEADING: Filing Instrument Sued On: Waiver: Justices’ Courts. In a case appealed from a justice of the peace, defendant complained that “the statement does not allege that the copy filed with the amended statement is verified as required hy section 1844, R. S. 1909.” Eel4, that this section has no application to pleadings in cases originating before a justice of the peace, and hel4 further that hy objecting to the sufficiency of the copy and not for failure to file the original the defendant waived the filing of the original.</p> <p>7. --: Failure to File Instrument: Motion to Dismiss: Demurrer. In a suit before a justice’s court, or when the case has been appealed to the circuit court, the latter court has the authority to require the instrument sued on, when it had been executed by the other party, to be filed and to dismiss the suit for failure to file the instrument. In such case a failure to file the iiistrument. without showing valid excuse may be reached by motion to dismiss, or a motion to require the instrument to be filed, but a demurrer is not the proper pleading.</p> <p>8.'-: Conditional Sale Contract: Refunding Money. In a 'suit ón a conditional sale contract where plaintiff does not take possession of the goods, section 2890, Revised Statute's 1909, does not apply and it is not necessary to allege in the statement that any part of the money had been refunded.</p>

<p>APPEAL AND ERROR: Criminal Law: Premature Appeal. Appeals in criminal cases are provided for from final judgments only; and where it appeared from the record that no judgment was entered upon the verdict of the jury, the appeal of defendant was held to have been prematurely taken.</p>

— Eon. L. B. Wood-side, Judge. (1) The petition is insufficient and does not state a cause of action under the statute. 30 Cyc. 1352; Wood v. Telegraph Co., 59 Mo. App1. 236; Connell v. Telegraph Co., 108 Mo. 459. (2) The statute is strictly penal. Eddington v. Telegraph Co., 115 Mo. App'. 98; Rixke v. Telegraph Co., 96 Mo. App. 410. (3) The office is not the kind of office contemplated by the statute. Wood v. Telegraph Co., 59 Mo.

Louis Circuit Court. — Row. Robert M. Foster, Judge. (1) Tlie court erred in refusing to give defendant’s instruction in tlie nature of a demurrer to tlie evidence as to the first count of plaintiff’s petition. Strottman v. Railroad, 211 Mo. 227; Gayle v. Foundry Co., 177 Mo. 427. (2) The court erred in refusing to give defendant’s instruction in the nature of a demurrer to the evidence as to the second count of plaintiff’s petition.