Volume 152 — Missouri Reports

Quo Warranto. (1) The anti-trust statute of Missouri does not infringe upon the liberty of the citizen to contract concerning his property and prohibit him the enjoyment of his property and impose restraints and burdens upon it without due process of law. Eoad Co. v. Sanford, 164 U. S. 592; Waters-Pierce Oil Co. v. State, 44 PI. E. W. E. 938; IT. S. v. Joint Traffic Ass’n, 171 IT. S. 505.

— Hon. W. S. Herndon, Judge. (1) The word “feloniously” is used in the court’s fourth instruction as an ingredient of the offense and nowhere defined in the instructions. State y. Deffenbacher, 51 Mo. 26; State v. Weldon, 70 Mo. 572; State v. Hayes, 105 Mo. 76; State y. Brown, 104 Mo. 366; State y. Johnson, 111 Mo. 578; State y. Ellis, 74 Mo. 207.

— Hon. Eudolph LIirzel, Judge. Tlie court committed no error in the admission of the testimony of Dr. William Erye, relative to the condition the body was in, and the examination made by the physician at the request of the coroner after the death of Wilson.

— Hon. L. B. Woodside, Judge. (a) In a criminal prosecution nothing is taken by intendment. State v. Austin, 113 Mo. 542. It is an elemental principle in criminal pleading that the indictment must allege every substantive fact that-is necessary to establish the guilt of a defendant. State v. Reed, 117 Mo. 613. When a particular intent is an element of the offense it must be charged. State v. Pinger, 57 Mo. 246; State v. Campbell, 108 Mo. 614; State v. Hesseltine, 130 Mo. 468.

<p>1. Forgery: uttering forged check: sufficiency of proof. Where the proof shows that the defendant indorsed and delivered a forged check knowing it to be forged and thereby obtained money from the firm to which it was sold by him, and that he falsely represented himself as the payee named in the check, the proof is sufficient to sustain an indictment charging him with unlawfully and feloniously selling and delivering to the said firm “a falsely made, forged and counterfeited check, .purporting to have been made and drawn by,” etc.</p> <p>2. Continuance: criminal practice: discretion. Much must be left to the discretion of the trial court in refusing or granting continuances. The appellate court will interfere only when the trial court clearly erred in denying the continuance.</p> <p>3. -: case stated. Where the court denied defendant’s application for a fourth continuance, and it was asked in order to enable him to bring in eight witnesses from the neighborhood of his home, for whom the court ordered attachments, and four of them were produced in court by the sheriff before defendant’s testimony was closed, and he declined to use any of them, and three of the others were no longer residents of the State, and citizens of the vicinity testified that no such man as the eighth lived in the neighborhood, and the defendant had had two years in which to secure the absent witnesses’ testimony, the court did not abuse its discretion by denying the application.</p>

— IIon. Paris O. Steep, Judge. (1) Tbe indictment in this case is fatally defective in both, courts, (a) Tlie first count fails to show, or allege what tbe defendant “assaulted” the deceased “with,” or that he assaulted deceased “with” anything. And an intendment can not supply the deficiency.

Louis City Circuit Court. — IIon. P. R. Nlitcraet, Judge. Tbe court erred in refusing to give the instruction offered by appellant, (a) In his position as a witness testifying against appellant, William Van Leuven occupied the attitude of au accomplice. Wharton’s Crim. Law (9 Ed.), sec. 982a; People v. Dunn, 7 N. Y. Orim. Rep. 174; State y. Scott, 28 Ore. 331; State v. Oarr, 28 Ore. 389; State y. McCoy, 52 Oh.

<p>Appeal from St. Louis City Circuit Court. — LIon. Jacob Klein, Judge.</p>

— IIon. John A. LIockadav, Judge.- (1) The testimony of the witnesses for the State was clearly to the effect that the pocketbook, valued at one and one-half dollars, and the note of the value of forty-six dollars were taken from the coat pocket of the prosecuting witness by the defendant. In this regard there was ample testimony to justify a conviction by the jury. This court will not consider the weight of the evidence nor the credibility of the witnesses.

— Hon. W. S. Herndon, J udge. (1) The court erred in finding against the defendant on his plea of autrefois convict, (a) A former prosecution for an offense is a bar to a subsequent prosecution when the former prosecution was for an offense which constitutes an element of the latter charge. Thus a conviction for petit larceny is a bar to a subsequent prosecution for -grand larceny on the same facts. 11 Am. and Eng. Eney. of Law (1 Ed.), 942.

— Hon. E. R. McKee, Judge. (1) The plea of former acquittal filed by the defendant, should have been tried by a jury. It was a constitutional right which he had. State v. Huffman, 136 Mo. 58; State v. Hatcher, 136 Mo. 641. And this constitutional right can not be taken away by the court. Coffey v. U. S., 116 U. S. 436; Hunt v. State, 86 Ala. 604; 34 S. W. Rep. 943; 131 Mass. 113; 168 U. S. 48.

— Hon. D. W. Shackleford, Judge. (1) Defendant offered to prove that at different times in 1896 and 1897, prior to his arrest, he collected various amounts of money. The court refused these offers of evidence, on the ground that the time was too remote. In this, there was error. Defendant’s testimony connected those transactions with the cash in his possession on the fourth of December, 1897.

Louis Ciby Circuit Court. — Hon. Seldbn P. Sfencer, Judge. (1) Under the by-law of the association, directing Tiernan as its secretary to deposit at least once a month with the treasurer all moneys received for the association, the relation between the association and Tiernan in regard to the moneys so received was, because of the credit thus given, simply that of debtor and creditor, and not that of trustee and cestui que trust.

Louis City Circuit Court. — Hon. P. R. Elitcraft, Judge. (1) Plaintiff’s petition is sufficient. The material averments in an action of trover are ownership or possession of the property in the plaintiff and its wrongful taking and conversion by defendant. 26 Am. and Eng. Ency. of Law, 744-767 and 801; Kniffer v. Blumenthal, 107 Mo. 665.

Louis City Circuit Court. — Hon. William Zaoheitz, Judge. The granting or refusal of a continuance is a question which is left to the discretion of the trial court, and an appellate court will not interfere with the exercise of such discretion by the trial court, unless it appears from the record that such court has acted arbitrarily and abused the discretion allowed to it, and has thereby injured the defendant in some material way in making his defense.

— Son. Reuben E. Rot, Judge. (1) Lon Hale, touching his interest and feeling in the case, was asked, if at the last term of court he had not driven in the night over to Shelbina to get his wife to come to Paris and testify. This question was clearly competent to show witness’ bias in the case. 29 Am. and Eng. Ency. of Law, 770; 1 Am. and Eng. Ency. of Law (2 Ed.), 704; St. L. Paint & Mfg. Go. v. Maupin, '30 Mo. App. 15.

— PIon. James F. Greene, Judge. (1) There being no evidence in this case to support the charge of a felonious assault it was the duty of the trial court to require the jury by an instruction to acquit the defendant, of the charge of felonious assault and to submit the cause of the defendant’s guilt of a common assault alone to the jury. Greenl. on Evid., sec. 49; State v. Bailey, 57 Mo. 131; State v. Harrod, 102 Mo. 590.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. Held: regardless of other considerations, that children thirteen and fourteen years of age are held guilty of contributory negligence under such circumstances. Butz v. Cavanaugh, 137 Mo. 512.

<p>Appeal from Jasper Circuit Court. — Hon. Joseph D. ■Perkins, Judge.</p> <p>TrANSEERRED TO KANSAS CITY COURT OE APPEALS.</p>

Louis City Circuit Court. — Hon. John A. Talty, Judge. (1) - Plaintiff, Albert Dammann, admitted that be was not present while his household effects were being removed by excited neighbors, and did not know whether his losses were caused by the accident itself or by the manner in which his well-meaning friends threw the furniture out of doors; no other witnesses supplied these facts. Yet plaintiff was allowed to enumerate the articles in detail and to testify to their value.

Transferred from Kansas City Court of Appeals. (1) Under Revised School Law of Missouri, 1897, as compiled by state superintendent, together with his comments thereon, the petition, is bad for the reason that the petitioners and parties who resided on sections three and ten, school district one had a right to appeal, they having voted for the change. Section 7972, School Laws, 1897, as published by state superintendent Kirk.

Louis Gity Gircuit Gourt. — Hon. Jacob Klein, Judge. (1) When a railroad takes private property through the exercise of the right of eminent domain, it can hot take any land except for the legitimate purposes of its franchise. Railroad v. Jennings, 13 S. W. Rep. 270; Lyon v. McDonald, 14 S. W. Rep. 261; In re New York, etc., Ry. Cta., 77 N. Y. 248; Postal Telegraph Co>. v. Eaton, 170 111. 513; Bond v. Pennsylvania Co., 171 111. 508; Platt v. Railroad, 1 N. E. Rep. 420.

— Hon. James H. Lay, Judge. I (1) A railroad company owes the same duty to its employees to furnish an unobstructed and safe track as to furnish safe appliances. An injury resulting to an employee from a failure of duty in this regard on the part of the company gives a cause of action. Henry v. Railroad, 109 Mo. 487; O’Mellia v. Railroad, 115 Mo. 205; Dickson v. Railroad, 124 Mo. 140.

Transferred from Kansas City Court of Appeals. (1) A corporation may exist de facto, and its organization can not be attacked collaterally. Kayser v. Bemen, 16 Mo. 90; St. Louis v. Shields, 62 Mo. 252; Stamper v. Roberts, 90 Mo. 683. (2) No change is authorized that creates or leaves a district with less than twenty school children. R. S. 1889, sec. 7972; Acts 1895, p. 267.

— Iíon. E. J. Broaddus, Judge. (1) Tbe defect of jurisdiction as to tbe respective areas of land appeared in tbe petition. There was no demurrer. Tbe court decided tbe question upon tbe area. Tbe court erred, because tbe question.as.to area bad been waived. (2) Tbe law is directory.

Louis City Circuit Court. — TIon. Horatio D. Wood, Judge. (1) The court erred in sustaining plaintiff’s motion for a new trial. Although there was a finding of nominal damages for plaintiff, in reality this was a verdict.for the defendant, and the trial court should have so treated it. . (a) The petition did not set out a cause of action upon the ordinance regulating the rate of speed at which defendant might operate its cars.

Louis Gity Circuit Gourt. — How. Daniel D. Eisher, Judge. (1) While a portion of the letter of July 3, 1895, written by the defendant to J. M. Ohittim, referred to a business transaction in which they had a common interest, still the court erred in holding that the portion of that letter which is made the basis of this action is privileged, (a) In making'. a communication which is only privileged by reason of being-made to a person interested in the subject-matter thereof,…

— Hon. George E. Longan, Judge. (1) The judgment of the circuit court granting the plaintiff a new trial must be reversed. That court failed to comply with section 2241, E. S. 1889, which provides that every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted. Miller v. Madison Car Co., 130 Mo. 517; Lumber Co. v. Christophel, 59 Mo. App. 80.

<p>Appeal from Saline Circuit Court. — ITon. Richard Field, Judge.</p> <p>. (1) According to the evidence Chas. T. Kelsey was to examine the deed of trust and the abstract before he made the loan; therefore, the deed of trust did not take effect until after Chas. T. Kelsey examined and accepted it. Kuh v. Garvin, 125 Mo. 562; Cravens v. Rossiter, 116 Mo. 338. (2) If Chas. T. Kelsey ever accepted said deed of trust, its acceptance only operated from the time of such acceptance as against plaintiff, who purchased under judgments rendered in the attachment suits against J. B. Kelsey. Cravens v. Rossiter, supra, (a) It was for the defendants to show the exact time when the deed of trust was accepted. They alone knew the fact, and having failed to show the date of acceptance, the presumption is that it was not delivered to Chas. T. Kelsey until after the attachment liens became perfected. Tyler v. Hall, 106 Mo. 319. (b) J. B. Kelsey could have directed the deed of trust to be returned to him at any time before it was actually delivered to and accepted by his brother, Chas. T. No rights could be acquired by Chas. T. Kelsey under the deed of trust until these formalities had been complied with. Hull v. Hull, 65 Mo. 689; Cook v. Brown, 34 N. IT. 460; Van Stone v. Goodwin, 42 Mo. App. 48. (c) The delivery of the deed of trust by the grantor to the' recorder does not change the rule of law above contended for. Cravens v. Rossiter, supra; Hall v. Hall, 107 Mo. 101. (3) “The deed of trust, while apparently valid, was, in fact, fraudulent,” and conferred no rights upon Charles T. Kelsey or the holders of the note. Knoop v. Kelsey, 121 Mo. 647. (4) When plaintiff purchased at the sheriff’s sale, he acquired all the interest of J". B. Kelsey in the land sold, and after said sale the sheriff’s deed vested in plaintiff the entire interest in the land sold, subject to the right to set former conveyances aside for fraud. Lionberger v. Baker, 88 Mo. 452; Knoop v. Kelsey, 121 Mo. 648; Gentry v. Robinson, S5 Mo. 260. (5) The sheriff could not, by any statement, reduce the interest of J.B.Kelsey in the land. The sale by the sheriff conveyed all of J. B. Kelsey’s right, title and interest in the land, and the sheriff could not limit the interest so sold by any act or statement of his. Dodge v. Walley, 22 Cal. 224; Whipple v. Farmer, 3 Mich. 436.. (a) There is no warranty of title at sale made by a sheriff, nor has the officer any authority whatever, in his official capacity, to make any warranty or representation concerning the title or interest conveyed. The plaintiff acquired all of defendant Kelsey’s title, whatever it might have been. 2 Freeman Exec. (2 Eel.), sec. 335. (6) This court has twice held that the deed of trust under consideration was fraudulent. Knoop v. Kelsey, 102 Mo. 291 and 121 Mo. 647. If it were longer an open question, the evidence clearly shows that Chas. T. Kelsey, Nixon and J. B. Kelsey were all acting in concert to cover up J. B. Kelsey’s property and to keep it out of the reach of his Missouri creditors. It is sufficient to make the deed of trust voidable, when attacked by plaintiff, who purchased the right to assail it for fraud, to show that either the trustee or beneficiary had notice of the fraudulent intent. Crow v. Beardsley, 68 Mo. 435. (a) The deed of trust being fraudulent, plaintiff can maintain this suit to set the same aside. Potter v. Adams, 125 Mo. 118; Gentry v. Robinson, 55 Mo-. 260; Knoop v. Kelsey, 121 Mo. 642. (I) The deed of trust having been executed in fraud of the rights of J. B. Kelsey’s creditors, nothing passed by it to either the trustee or the beneficiary. There was no equity of redemption in J. B. Kelsey, which can only exist in cases of a valid and bond, -fide mortgage or deed of trust. The existence of an equity of redemption presupposes the existence of a legal mortgage. Bullard v. Ilinkley, 6 Greenl. (Me.), 289. (8) The contention of defendants’ counsel in the trial court was that the sheriff sold only the equity of redemption of J. B. Kelsey in the land, and the trial court so held. The sheriff acted under the statute and, in virtue of the judgment of the court and the law under which he acted, conveyed all of the interest of J. B. Kelsey in said real estate. Stanton v. Boschert, 104 Mo. 393; R. S. 1889, sec. 543.</p> <p>(1) The perfected attachment liens under which appellant claims title do not antedate the title under the deed of trust, (a) The first attachment abstract was filed at 2 o’clock in the afternoon of August 25th, 1882, and the evidence all tends to show that the deed of trust was received by Nixon at Oswego, N. Y., on August 23rd, and on that day delivered to Dr. Charles T. Kelsey and accepted by him. (b) That an attachment lien is not completed or perfected until the filing of the abstract of attachment in the recorder’s office is firmly established in this State. Stanton v. Boschert, 104 Mo. 393; Bryant v. Duffy, 128 Mo. 18. (2) Plaintiff’s ground for relief founded on the alleged priority of the attachment over the title under the deed of trust was set up for the first time in his amended petition filed more than ten years after the deed of trust was placed of record. He is, therefore, seeking relief on a new title or cause of action, and is barred in respect thereto by ten years’ statute of limitations pleaded in the answer. Sims v. Field, 24 Mo. App. 557; Buell v. Ins. Co., 45 Mo. 562; Holmes v. Front, 7 Peters 171. (a) The statute of limitations runs against a conveyance made in fraud of the grantor’s creditors from the time it is recorded. Liese v. Meyer, 143 Mo. 555; Kogers v. Brown, 61 Mo. 195; Hughes v. Tettrell, 75 Mo. 573; Funkhouser v. Lay, 78 Mo. 466. (b) "Where the statute so begins to run, no intervening matter, such as infancy, possession or the like, can thereafter interrupt its course. Cunningham v. Snow, 82 Mo. 587. (3) A sale though made by a vendor with fraudulent intent, is not invalid, unless the vendee had actual notice and knowledge of such intent; the knowledge of facts which, if investigated and followed, would lead to knowledge of the fraud, is insufficient. State to use v. Mason, 112 Mo. 374. (a) The case before the court is one of conditional sale, i. e. the deed of trust in question is a conditional sale, J. B. Kelsey not having been a previous creditor of C. T. Kelsey. A fraudulent intent to render a sale of property void as to creditors must exist at the time of the sale, and the vendee must have knowledge thereof. Hill v. Taylor, 125 Mo. 331; Sexton v. Anderson, 88 Mo. 379. (b) Fraud is never presumed, but must be proved; while it may be inferred from facts and circumstances, the burden rests upon the party asserting it to make it manifest. Hardcastle v. Hamilton, 121 Mo. 465; Priest v. Wray, 87 Mo. 16; Funkhouser v. Lay, 78 Mo. 458; Hausman v. Hope, 20 Mo. App. 193. (4) Wrhere an execution creditor sells tbe equity of redemption in land, such creditor is estopped to assail the mortgage or deed of trust on tbe land as being in fraud of creditors, and tbe purchaser at the execution sale occupies no better position than tbe execution creditor. Knoop v. Kelsey, 102 Mo. 291; s. c., 121 Mo. 642; Craig v. Zimmerman, 87 Mo. 479; Messmore v. Haggard, 46 Mich. 559; Ereeland v. Freeland, 102 Mass. 478; Flanders v. Jones, 30 N. H. 154; Brown y. Snell, 46 Me. 490; Lord y. Sill,, 23 Conn. 324. Tbe sheriff’s notice of sale, bis deed which recites that be conveyed all the interest of J. B. Kelsey that “I might sell as sheriff as aforesaid by virtue of tbe aforesaid judgment, execution and notice,” and all tbe facts and circumstances attending tbe sale and in evidence, conclusively show that appellant only bought tbe equity of redemption in tbe premises sold. 2 Freeman on Exec. (2 Ed.), sec. 339; Knoop v. Kelsey, 102 Mo. 298; s. c., 121 Mo. 642. (5) Tbe findings of tbe trial court on tbe issues of fact were in favor of tbe defendants, and we submit that under tbe decisions of this court they should not be disturbed. It is uniform rule for this court to defer much to tbe finding of facts made by tbe chancellor. It held in a recent case that it would not disturb tbe findings of tbe lower court unless satisfied it was against the preponderance of tbe evidence. Bank v. Newkirk, 144 Mo. 473; “Short v. Taylor, 137 Mo. 518; Rawlins v. Rawlins, 102 Mo. 563; Snell v. Harrison, 83 Mo. 651; Lallement v. Poupeny, 12 Mo. App. 580.</p>

Louis City Circuit Court. — TIon. Selden P. Spencer, Judge. (1) Tbe instruction given by tbe court of its own motion, and afterwards condemned by it, was correct. Tbe instruction merely declared, in proper terms, tbe legal effect to be given td tbe photographs offered in evidence by plaintiff. These photographs were not taken at the time of the accident, but four days later.

— Hon. John H. Sloybr, Judge. (1) This being a suit against an administrator, respondent was wholly incompetent to testify on any matter occurring prior to grant of letters of administration. The court err.d in permitting Miss Sprague to testify in the case. R. S. 1889, sec. 8918; Leeper v. Taylor, 111 Mo. 312; Nowack v. Berger, 133 Mo. 24. (a) Having a legal, direct and certain interest in the suit, she was disqualified. Banking House v. Rood, 132 Mo. 256.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) ' It was error to amend plaintiff’s first instruction by inserting tbe words, “if you believe tbe article itself to be false and libelous,” and to instruct tbe jury that they were “tbe sole judges as to whether tbe article complained of is libelous or not.” (a) Because tbe publication complained of was libelous per se. Mitchell v. Bradstreet, 116 Mo. 226; Herman v. Bradstreet, 19 Mo.

— Hon. William S. Hekndon, Judge. (1) There are many circumstances which, if taken separately, would not be deemed sufficient evidence of fraud, but when taken in their combinations furnish an abundance of evidence to send the case to the jury. All the circumstances must be taken collectively. Wait on Eraud. Conv., sec. 224; State to use v. Mason, 112 Mo. 382.

<p>1. Negligence : hole in depot platform. In a suit by a passenger for injuries caused by stepping in a hole or crack in the station platform as she was attempting to board a train, it is not necessary that the location of the hole or crack be shown with absolute certainty, but it is sufficient if it existed, and that by reason thereof the platform was not reasonably safe, and that she got her foot in said hole while attempting to board the train, and as a result was injured without fault or negligence on her part. If the jury can in effect find these facts from the evidence, it is proper to refuse a demurrer to the evidence. -</p> <p>2. --: medical services. It devolves upon plaintiff in seeking to recover damages for personal injuries to make out her case, and an instruction that authorized the jury “to take into consideration any evidence as to any expense she has necessarily incurred in being treated for said injuries” is error, if there is no proof that she has ever paid her physicians anything, or agreed to do so, or that she has incurred any liability, on account of such services, other than that which might be implied from their rendition. A general statement that her “doctor’s bills are between two and three hundred dollars, perhaps that, I do not know exactly,” is inadmissible evidence, and can not be the basis of such, an instruction.</p> <p>3. Blending Causes: instruction. Where the petition blends two causes of action, plaintiff’s instructions do not have to cover both causes. They must cover the allegations that go to make up one cause and the other may be disregarded or abandoned.</p> <p>4. Negligence : depot platform: slight defect. An instruction to the effect that a passenger, who was injured on a depot platform by stepping in a hole or craek at the time she was boarding a ear, is entitled to recover if the platform was in an unsafe condition and out of repair, however slight the defect may have been, is faulty. The railroad company is required to keep the platform only in a reasonably safe condition.</p> <p>5. -: plaintiff’s instruction: measure of damages. Where plaintiffs instruction as to the measure of damages is good as far as it goes, and defendant desires to restrict his right to damages to more limited bounds, he must ask an instruction to that effect.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The instruction numbered 1 is manifestly erroneous. It ignores the possibility of the adoption of the plans by the respondent, although they might have been originally drawn for Truitt. It ignores the claim of the appellant, as sought to be established by his evidence, that Truitt was acting for the respondent.

Louis City Circuit Court — Hon. Leroy B. Yalliant, Judge. (1) Tliis action should, on plaintiff’s theory, and as the court has found that the agreement and deeds of September, 1889, were void, have been brought against the heirs of Socrates Newman, as well as against the trustee under his will, (a) His will could not devise what he absolutely had no title to, as the decree, if valid, determines, (b) The Roger’s deed was to the trustee and his heirs, and those heirs were…

— Hon. C. C. Bland, Judge. The bond of each office must' certainly stand good for the principal’s defeasance in that particular capacity. The bond the clerk gives as ex officio recorder is conditioned the same as when the office of the recorder is separate. R. S. 1889, sec, 7447. He is required in both instances to account for surplus fees.

— Hon. D. W. Shaoklefoed, Judge. (1) It is an elementary principle of common law that land includes all buildings standing thereon. That whatever is affixed to the soil is thereby made a part of it, and passes by the grant of the. land without other designation. Havens i>. Ins. Co., 123 Mo. 419; Bouvier Law Diet, title, Land; 2 Bl. Com. 18; 2 Wash. Real Prop. (2 Ed.), 665.

Louis City Circuit Court. — Hon. P. R. Elitcraft, Judge. (1) Tbe court erred in giving plaintiff’s instruction number 1.

Transferred from Kansas City Court of Appeals. (1) The verdict and the judgment. are erroneous, and are not supported by the evidence.

<p>Appeal Dismissed: failure to comply with statute. Where the appeal is brought to the Supreme Court by filing therein a certified copy of the judgment and the order granting, the appeal, under the provisions of section 2253, Revised Statutes 1889, the printed abstract filed must show all the essential facts necessary to give that court the right to review the exceptions taken in the trial court. And if this abstract fails to show that the bill of exceptions was properly filed, or that it was filed in time, or that judgment .was rendered, the appeal will be dismissed.</p>

Mandamus.. The Kansas City Court of Appeals has no jurisdiction of these cases for the reasons: First, the title of the relators to the offices, to the possession and emoluments of which they sought to be restored, is involved in the said suits, and these offices are offices under this State; and second, because the question of the power of the commissioners to remove the relators from office was made to depend upon the question whether the charter of Kansas City, adopted…

Appeal .from, St. Charles Circuit Court. — Hon. E. M. Hughes, Judge. (1) The court erred in giving plaintiff’s instruction number 1. First. It placed the burden of proof on defendant, when it was on the plaintiff. The general rule that negligence on the part of defendant must be alleged and proven, is fundamental.

Prohibition. (1) The authority for the institution of this suit of prohibition is found in the Oonstitution of the State and its statutory laws. Constitution of Missouri, sec. 3, art. VI; Laws 1895, p. 95. (2) The object of the writ is to prevent an inferior tribunal from assuming jurisdiction of a matter with which it is not legally vested, or where having jurisdiction, it has exceeded its legitimate powers. State ex rel. v. Lewis, 76 Mo. 370; High on Extr. Leg.

Prohibition. Judge Withrow is shown by the return to have been incompetent to act in vacation for Judge Eisher, inasmuch as his-own division was at that time in session and whatever actions were taken in reference to the matter must have been done in term time and not in vacation of court.

Louis City Circuit Court. — Hon. James E. Withbow, Judge. (1) The deed from Michael Kelly to John E. Yore, trustee for Barbara Ann Yore, vested in Mrs. Yore an equitable fee simple estate in the property thereby conveyed.

Quo Warranto. (1) Taking the oath of office by respondent, appointing a clerk of the court, and demanding possession of all the dockets and records thereof, is a sufficient user of the office to sustain an information in quo warranto. State ex rel. v. Graham, 13 Kan. 136; State ex rel. v. Meek, 129 Mo. 431.

— Hon. John W. Wofford,-Judge. (1) The court erred in refusing to give instruction numbered 4, asked by the defendant. The general rule in support of which the citation of authorities is unnecessary, is that hearsay evidence is incompetent to establish any specific fact which in its nature is susceptible of being proven by witnesses who can speak from their own knowledge.

Transferred from Kansas City Court of Appeals. (1) A suit to enforce rights secured or arising out of the Interstate Commerce Act involves a Federal question. Lennon v. Late Shore, etc., 22 U. S. App. 561.

— Hon. D.' P. Stratton, Judge. (1) The court stenographer not only made a transcript of the oral evidence, but preserved a record of all the evidence given at the-trial. All the evidence as transcribed by him was attached to the bill of exceptions when signed by the trial judge.

— Hon. W. N. Evans, Judge. (1) The certified copy of the power of attorney should have been excluded for the reason that it was not acknowledged before any officer authorized by the laws of this State to take acknowledgments. R. S. 1889, sec. 2403. A deputy clerk can take an acknowledgment in the name of his principal only, and never in his capacity of deputy alone. Springer v. McSpadden, 49 Mo. 299.

— Hon. John W. Wofford, Judge. (1) The evidence is'unquestionably sufficient to warrant the verdict found. The killing is admitted. The only point of contention being as to whether it was done in self-defense. If not in self-defense, was it committed under such circumstances as would warrant a verdict of guilty of murder in the first degree as defined in the instructions, or murder in the second degree as also defined ?

— Hon. James C. Lamson, Judge. At the time the motion for a new trial and the motion in arrest of judgment were overruled by the lower court, the defendant failed to except thereto, and for his actions in thus failing to except and save his exceptions thereto in the bill, this court will take no cognizance of the question there involved unless it be to the record proper.

— Hon. L. B. Woodside, Judge. (1) County warrants legally issued in 1893, 1894 and 1895 are receivable for county taxes levied in 1896. R. S. 1889, secs. 3205 and 76Ó4; Logan v. Barton County, 63 Mo. 336; Reynolds v. Norman, 114 Mo. 509; Wilson v. Knox County, 132 Mo. 387. (2) Section 3205 (passed in 1835) has not been repealed or modified by subsequent legislation, but is in harmony therewith.

— Hon. Chas. W. Wilson, Special Judge. (1) Tbe finding of tbe court tbat plaintiff bad curtesy interest in tbe land was erroneous. Tbe life estate of Mrs. Joseph Hunter was outstanding when plaintiff’s wife died. In such a case no estate of curtesy exists. There was no seizin in the wife. Martin v. Trail, 142 Mo. 85.

<p>This case is reversed on the authority of Cox v. Boyce, ante, p. 576.</p>

— Hon. John W. Heney, Judge. (1) The ordinance and contract are not inconsistent. Tbe same tax involved in the Brannock case 10 Mo. App. 535,, have been before tbe Kansas Oity Court of Appeals three times. McQuiddy v. Vineyard, 60 Mo. App. 610; McQuiddy v. Smith, 61 Mo. App., 205 and McQuiddy v. Gates, 69 Mo. App. 156.

Louis City Circuit Court. — Hon. D. D. Fisheb, Judge. (1) During tbe joint lives of tbe father and mother, the duty of supporting the infant children of the marriage devolves upon the father, and correlatively, and as some of the cases say, in compensation therefor, .he is entitled to their labor. Bishop on Marriage, Divorce and Separation, sec. 1158; 17 Am. and Eng. Ency. of Law, 755; 18 Am. and Eng. Ency. of Law, 379; Buck v. Street-By., 16 Mo.

Louis City Circuit Court. — Hon. P. R. Flitcraft, Judge. Plaintiff had the right to show that the entire cornice was rotten. Small v. City of Tipton, 63 Mo. App. 235; 1 Rice on Evid., pp. 489 and 490. The rulings of the court on evidence were correct. The matters excluded were all incompetent. They were not connected with any matters material to the issue involved.

— Hon. W. W. Wood, Judge. (1) Tbe court erred in trying tbe case over plaintiffs objection. The record shows that the court had not then acquired jurisdiction to try the case. The summons issued by the clerk was a nullity. Williams v. Monroe, 125 Mo. 574. When this defect ivas pointed out the court should then have proceeded in accordance with the statute as construed by this court. (2) The court erred in setting aside the report of the commissioners.

— Hon. W. N. Evans, Judge. (1) Respondent’s possession of the strip of ground in dispute was not under claim of title for ten years prior to the institution of this suit. DeBarnardi v. McElroy, 110 Mo. 650; Allen v. Mansfield, 108 Mo. 343; Kansas City Milling Co', v. Riley, 133 Mo. 574; Bradly v. West, 60 Mo. 33. (2) Respondent’s possession was not hostile in its inception or continuance to the true title of the owner.

Louis City Circuit Court. — Hon. Selden P. Spenceb, Judge. (1) The court erred in permitting plaintiff to testify to “the amount of damage done” to his horse and wagon, in response to a question to that effect put by his counsel. It was for the jury, or court sitting as a jury, and not for the witness, or the witnesses, to determine the amount of damage.

Louis City Circuit Court. — Hon. P. R. Flitcraft, Judge. (1) Gotham’s mental aberrations being but temporary results of fever, which clouded or deranged his faculties at times and left them clear at other times, the plaintiff must bring his proof of mental incompetency down to the very transfer in controversy, and show specifically the existence of the temporary derangement at that moment; no presumption of the continuance of a derangement shown to have existed at any other…

— Hon. Ben T. Habdin, Special Judge. (1) A demurrer to evidence in an equity case, as well as at law, concedes every fact which the evidence tends to prove, and every inference fairly deducible from the evidence. Healey v. Simpson, 113 Mo. 340; Leeper v. Bates, 85 Mo. 224; Baker v. Sutterfield, 43 Mo. App. 591; Patton v. Bragg, 113 Mo. 600; Seitz v. Mitchell, 94 U. S. 19.

<p>Appeal from Clinton Circuit Court■ — Hon. William S. Herndon, Judge.</p>

— Hon. Edward P. G-ates, Judge. (1) Sections 8252 and 8253, R. S. 1889, are unconstitutional and void, being in violation of sec. 53, art. Ill, Constitution of Missouri, which prohibits the enactment of any local or special laws regulating the affairs of cities or creating offices or prescribing powers and duties of officers in cities.

<p>Appeal from Jackson Circuit Court. — Hon. Charles L. Dobson, Judge.</p>

Transferred from St. Louis Court of Appeals. (1) Tbe defendant’s objection to plaintiff’s testimony as to conversations and acts with John W. Allen should bave been sustained. If as it was shown tbe property belonged to Mrs. Allen, then any statement, declaration or act of Joba W. Allen about tbe property could not bind her, and was incompetent for any purpose.