Volume 169 — Missouri Reports

— Hon. Jno. P. Butler, Judge. (1) While a trial court is not required to set forth its finding on all the questions of fact involved in a suit in equity, yet, in order for the decree to stand, there must be either a general finding of the facts for the party in whose favor the decree is rendered, or a finding of such ultimate facts as will authorize the rendition of the decree.

— lion. Edw. P. Gates, Judge. (1) Evidence of statements made to or by defendant’s agent concerning other insurance before the policy was issued was clearly inadmissible, and evidence of statements after the policy was issued of an intention to procure other insurance, when able, was also clearly inadmissible. A written contract can not be so varied.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) Tbe ordinance in controversy is a relief ordinance, and as sucb is beyond tbe powers of tbe assembly. Sec. 30, art. 3, Charter of St. Louis; sec. 41, art. 4, Constitution; sec. 3, art. 10, Constitution; Hitchcock v. St. Louis, 49 Mo. 484; Campbell v. St. Louis, 71 Mo. 106.. (2) Construed as defendant contends, it is void because in sucb case its subject is not even mentioned, mucb less clearly expressed, in its title.

— Hon. E. J. ■BroadduSj Judge. (1) (a) The court refused to let appellants prove the value of the ninety-five barrels of whiskey in question, at the time the second mortgage was given, or at the time S. J. Smith took it, or at the time of the trial, but allowed the value of it to be proved only at the date S. J. Smith sold it at auction.

— Hon. Jacob Klein, Special Judge. (1) The fraud for which a judgment may be vacated in equity must be in the procurement of the judgment; and relief will be granted a party only on grounds of which he could not have availed himself, or was prevented from doing it by fraud or accident or the act of the opposite party, unmixed with fault or negligence on his part.

<p>1. Appeal: appointment op receiver: motion to set aside: how preserved. A motion to set aside an order appointing a receiver must be preserved in a bill of exceptions to entitle the movant to have the order reviewed in the appellate court. And if the motion is not so preserved, and the only error urged is the trial court’s refusal to sustain it, the judgment will be affirmed.</p> <p>2. -: -: -: printed COPT. If the alleged transcript contains no order of record of the filing of a motion to set aside the appointment of a receiver, nor any recital by way of narrative that it was filed, or if so, when it was filed, and there is no bill of exceptions, nor the statement of the filing of one in which said motion is preserved, a printed copy of what purports to be the motion will not entitle appellant to have the trial court’s action in overruling the said motion reviewed on appeal.</p> <p>3. -: --: evidence. A motion to have set aside an order appointing a receiver will not prove itself, but must be supported by evidence.</p>

<p>Appeal from Jackson Circuit Court. — Hon. John W. Henry, Judge.</p> <p>Transferred to Kansas City Court of Appeals.</p>

— Hon. J. H. Blover, Judge. (1) (a) The provision in section 11 of the park law of Kansas City for the published notice “To whom it may concern,” that a jury is to be impaneled “for the ascertaining of the compensation to be paid for the property to be taken or damaged and the amount of benefit, if any, to be assessed therefor,” does not require any affirmation or fair implication that all or any lands in the benefit district, are actually or especially benefited, or that a…

— Hon. Jno. P. Butter, Judge. (1) Under the pleadings the execution of every instrument and deed in plaintiffs’ chain of title, which is regular on its face, acknowledged and duly recorded in Chariton county, appearing to be executed by defendants, is “adjudged confessed.” And under the answers the defendants ought to to have been permitted to deny the execution of the deed of trust offered in evidence by plaintiffs given by defendants to Delia Eox.

Mandamus. title that No person or corporation, except those bolding through Eoy, ever claimed this property or pretended its eastern boundary was not the Mississippi river. The city does not claim it was ever dedicated, condemned or belonged to it. That being the case, the excuse of the building commissioner that a part of the proposed structure will be east of the wharf line, must fall to the ground.

— lion. J. L. Fort, Judge. (1) Under the facts shown by the evidence, defendants were entitled to recover, and the judgment rendered by the Dunklin Circuit Court, at its November term, 1900, dismissing plaintiffs’ bill, was for the right party. (2) Where, upon the whole record, the judgment is for the right party, it will not be reversed on appeal, although the reasons assigned therefor hy the court below are not correct. (3) These judgments were no longer debts of Wm.

Louis City Circuit Court — Ron. Franklin Ferris, Judge. (1) ' It is the law that a unilateral contract, while it. remains wholly executory, can not be enforced by either party.

Louis City Circuit Court. — Hon. II. D. Wood, Judge. (1)' An. erroneous judgment may be corrected by the -court rendering it, at any time, whether before or after the -close of the term at which it is rendered, provided sufficient memoranda exist in the minutes of the judge, or in the rec•ord or files of the case by which to- correct the erroneous entry, which has been the result of a clerical mistake or misprision. ' Railroad v. Holschlag, 144 Mo-. 253; Gamble v. Daugherty,…

— Hon. Jas. E. Hazell, Judge. (1)Nothing could be done in the case of James C. Hopper v. Samuel Hiekam et ah, after the death of said Hopper, until his death had been suggested in the court where the suit was pending, and the cause revived, and a person substituted who could represent the interest of the deceased. Gamble v. Daugherty, 71 Mo. 602; Sargeant v. Eowsy, 89 Mo. 622. The death of James C. Hopper terminated the authority of his attorneys.

- — Hon. W. B. Teasdale, Judge. (1) One in possession of -realty, claiming right thereto, can not, in absence of express statutory provision, be deprived of that possession by appointment of a receiver or injunction, or both, in an action to which he is made defendant, merely because he holds such possession whether rightful or wrongful, and especially is this true where the defendant is unquestionably solvent. Pullis v. Pullis, 15Y Mo. 580.

Louis City Circuit Court. — No». N. D. Wood, Judge. The plaintiff is not relying entirely upon the ordinance, or whether or not it only refers to hatchways in the inside or outside of -buildings; but in addition contends that inasmuch us the yard, as averred in the plaintiff’s petition, was used in common by all of defendant’s tenants occupying its flats, -opening- out into said yard, for drying clothes and various other purposes of like kind, the defendant being in the…

— Hon. E. B. McKee,. ' J udge. (1) The statute requires actual notice to a purchaser of' land where a conveyance is unrecorded. R. S.-1899, sec. 925. Yague and flying rumors hy strangers to the title do not constitute actual notice. Wade on Notice, sec. 29; 2 Pomeroy’s Equity, secs. 597 and 602.

<p>Appeal from St. Louis City Circuit Court. — Hon. H. D. Wood, Judge.</p> <p>Transferred to the st. louis court of appeals.</p>

Louis City Circuit Court. — lion. FrankUn Ferris, Judge. (1) The note and. deed of trust in controversy, having been executed in favor of the appellant by the .direction of her husband, and having been delivered and given to her by her husband, were prima facie a gift to her from her husband, - and thereby became .the separate property of the appellant.

- — Hon. W. L. Jarroti,. Judge. (1) Grigsby’s original petition stated no cause of action in himself.

Louis City Circuit Court. — Hon. Jno. A. Talty, Judge. (1) Under the terms of section 21, article 2, Constitution, one whose property is damaged for public use is entitled, at any timie after the work has commenced, to have his compensation adjusted and paid, without reference to the fact that the work is not completed. Hickman y. City of Kansas, 120 Mo. 110; St. Louis, v. Hill, 116 Mo. 527; St. Louis v. Lang, 131 Mo. 412; Iron Co; v. St. Louis, .138 Mo. 608.

Louis City Circuit Court. — Hon. P. B. Plilcraft, Judge. (1) The court erred in giving the instructions asked by plaintiff, and in refusing and modifying instructions asked by the appellants. E. S. 1899,, sec. 4203; Squires v. Eitbian, 27 Mo. 134; Porter v. Tooke, 35 Mo. 107; Bridewell v. Clark, 39 Mo. 170; Crandall v. Cooper, 62 Mo. 478; Schulenburg v. Hayden, 146 Mo. 583; Kline v. Perry, 51 Mo. App. 422; Garnett v. Berry, 3 M.o. App. 197; Hughes v. Anslyn, 7 Mo.

Transferred from Kansas City Court of Appeals. The trial court erred in giving the instruction in the nature of a demurrer to the evidence, asked by defendant, at the dose of plaintiff’s case. Martin v. Mill Co., 49 Mo. App. 23; O’Neal v. Stone, 79 Mo. App. 279.

— Hon. H. G. Pepper, Judge. In suits in equity, tbe appellate court is not bound to follow tbe findings of tbe trial court, but where tbe evidence is all before tbe appellate court, it will review such evidence and arrive at its own conclusions upon tbe facts. Courtney v. Blackwell, 150' Mo. 245; Parker v. Vanboozer, 142 Mo. 621.

Louis City Circuit Court. — Son. Wm. Zachritz, Judge. The court erred in instructing the jury that if there was no direct evidence as to any other cause of death of Clement Laessig, the law presumed that the death was due to accident,, for two reasons: first, there was no- legal presumption of law in this case. If there was a presumption at all it was one of fact as distinguished from one of law.

Louis City Circuit Court. — Hon. S. P. Spencer, Judge. (1) If the amendment in question is valid, it either relates to and is alternative to curtesy or creates a new right independent of curtesy as an existing right. If the first,, then O’Brien can not maintain this suit, because he had no curtesy in his wife’s estate. If the second, he has no interest in the_ land, because it was devised to the appellant Ash by the will of his wife, to devise which she had an absolute right.

Louis City Circuit Court. — Hon. Franlclin Ferris, Judge. (1) Where title to property depends upon the question of survivorship of persons shown to have perished in a common catastrophe, and further direct evidence is not obtainable, the law will raise no presumptions of survivorship based on age, sex or condition, and the person claiming through survivorship mfust fail.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) Tbe city of St. Louis bad a right to contract by ordinance for the payment' of the sum plaintiff agreed to- pay in order.to obtain the necessary consent of the city to the use of its streets, and, hence, the contract so* entered is binding. Charter St. Louis, art 3, sec. 26, clause 2; State ex rel. v. St. Louis, 145 Mo. 551; St. Louis v. Tel. Co., 148 U. S. 105; St. Louis v. Tel. Co., 149 U. S. 468.

<p>Homestead: sale to wipe: debts. The homestead is exempt from seizure or sale during the life and occupancy of the head of the family, but he, with the aid of his wife, may sell, convey, mortgage, or in any other manner dispose of it, and he does not thereby impair the right of any creditor, whether the conveyance is a mere gift or founded on fraud or made because he is insolvent. The grantee gets a good title, whether such grantee be his wife or other person. And after his death the property if deeded to his wife during his life can not be subjected to the payment of his debts, nor does she any longer have any homestead interest therein, but is the owner of the fee.</p>

Clair Circuit Court.- — Eon. W. W. Graves, Judge. (1) This case in all its essential features was before this court- in the case of Wheeloek v. Overshiner, 110 Mo. 100, except that upon all the points upon which that case was decided adverse to defendants’ contention, the facts in the case are much stronger. This court having once passed upon all the questions involved in this record, will not review the same.

— Hon. W. K. James, Judge. (1) The only cause of action alleged in plaintiff’s petition is that the deed under review was made without any consideration whatever and with fraudulent intent, etc. No evidence whatever was introduced in support of this allegation;1 and a finding or judgment unsupported by evidence should be set aside. Oallahan v. Wame, 40 Mo. 132; Boland v. Bailroad, 36 Mo. 491; E. S. 1899, secs. 798, 799.

— Hon. Samuel Davis, Judge, The judge erred in awarding change of venue to Saline county, in the same judicial circuit with that of Lafayette county- — the order for such change being founded solely upon the. prejudice of the judge, and such order not stating that there was a failure to agree upon or to elect a special judge. City of Kansas City v. Eord, 99 Mo. 91. (1) The change of venue was rightly awarded.

<p>1. Meaning of Due Process of Daw. While the courts do not attempt to define in a few words “due process of law,” or its synonym, “the law of the land,” still by these phrases is usually .intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. Every citizen holds his life, liberty, property and immunities under the protection of the general rules which govern society. But everything which may pass under the form of an enactment is not to be considered as the law of the land.</p> <p>2. Recovery on Cause Existing at Commencement of Suit: difference between plaintiff and defendant. Plaintiff must recover upon a cause existing at the commencement of his suit. But not so defendant. He has the right to plead any defense existing at the time he is required to answer, and if some act or circumstance occurs after the filing of his answer which would have constituted a defense had it occurred prior to filing the answer, he may, by leave of court, avail himself of it by amended answer, at any time prior to and often even during the trial.</p> <p>3. -: SPECIAL TAXBILLS: NOTICE OF DEFENSES THERETO WITHIN sixty days. ■ A provision of a city ordinance that requires the owner of abutting property to know and to file with the board of public works all his objections and defenses to special taxbills issued against his property, within sixty days after the taxbills are issued, or be forever barred from making such defenses when they are sued on, deprives him of his property “without due process of law.” and is, therefore, unconstitutional and void.</p> <p>4. Special Taxbill: issuance after time limit. A city council has no authority to issue a taxbill for work which has not been done within the period prescribed by the ordinance under which it was required to be doné. A city council can not validate that which is void and incurable.</p> <p>5. -: CONSTITUTIONAL QUESTION: RAISED BY MOTION FOR NEW trial. A challenge, in his motion for a new trial, of the constitutionality of the ordinance under which defendant is denied the right to plead a good defense to taxbills, is timely, if it is the first opportunity he had to "raise the point.</p>

<p>1. Appellate Practice: demubkek: judgment: bill or exceptions. Where a demurrer to a petition is sustained and judgment entered thereon, a bill of exceptions for the purpose of preserving the demurrer is unnecessary.</p> <p>2. Contract: violation: pleading: legal conclusions. In a suit to restrain the violation of a contract by a former employee of plaintiff that for six years after leaving its employ he would not, within the United States, engage in selling, dealing in, or manufacturing, any of the articles manufactured, dealt in, or sold, by it, a petition alleging that defendant within such time “entered upon, and is engaged in, the manufacture and sale of chemicals, drugs, and other articles of the same kind and character as those manufactured, sold and dealt in by the plaintiff,” and “tjiat such acts on defendant’s part are a breach of the obligation imposed by his agreement aforesaid,” and “that in so doing he utilizes the information as to processes and customers acquired while in the plaintiff’s employ,” states merely the legal conclusions of the pleader, and is demurrable. Defendant was entitled to a statement of the constitutive facts which compose plaintiff’s cause of action, if it had any, for this is the rule of our code. And equally as surely, such facts plaintiff did not set forth. The allegation quoted is simply the averment of a legal conclusion; not the statement of issuable facts; not, therefore, either traversable or demurrable, and is to be treated as no statement at all, and consequently obnoxious to attack by general demurrer. The allegation of a conclusion of law raises no issue, need not be denied, and its truth is not admitted, by a demurrer to the complaint containing it. Under the authorities cited in the opinion, the clause aforesaid, being a mere legal conclusion and therefore wholly worthless, is to be treated as entirely eliminated from further consideration, and as though it had not been pleaded.</p> <p>3. Practice: making pleading definite and certain: duty of party drawing pleading. Defendant was not required to move to 'have the pleading made more definite and certain. He might indeed have' done this, but was not compelled to do so. The primary duty of making the pleading definite and certain is on the party drawing the pleading, and he can not, by his remissness, east on his opponent the omts of doing what his own duty demands; a duty which consists in expressing his meaning clearly and unmistakably. This view is the one taken in New York, whence our code is derived.</p> <p>4. Contract: restraint of trade: injunction. Such contract is one in restraint of trade, which equity will not enforce by injunction.</p>

— Hon. Jno. P. Butler, Judge. The court erred in allowing this suit to be prosecuted in the name of John L. Gay and refusing to dismiss the same on the stipulation between Gay and the defendants. None but the parties to an action will be allowed to interpose in its control; and an action commenced and carried on without authority of the parties named as plaintiff, should be dis>missed.

Louis City Circuit Court. — TIon. Franklin Ferris, Judge. (1) It is the duty of a carrier of passengers to use ordinary care to have its depot platforms in a reasonably safe condition for the use for which they are intended. It was error to exclude from the jury the issue-of negligence in that particular in this case. Fullerton v. Eordyce, 121 Mo. 1; Waller v. Railroad, 59 Mo. App. 410; Railway v, Wortham, 73 Tex. 25.

— Ron. R. G. Timmonds, Judge. (1) The effect of the statute, “Dastards shall be capable of inheriting and transmitting inheritance on the part of their mother, and such mother shall inherit from her bastard child or children in like manner as if they.had been lawfully begotten of her,” enacted in this and other States, is to give to the bastard, in Taw, as in fact, a mother, which he did not have at common law; to concede to him inheritable blood on his mother’s side, thus…

— Hon. Edward P. Gates, Judge. The plaintiff can recover for tbis deceit. This loan was made exactly as all other loans had been made by these agents. The false representations were made to them as agents and while engaged in their duties as such. They were made to them, not to get a loan from them, but from this plaintiff. When they were deceived, they were deceived as agents of plaintiff- — -deceived in making this loan for plaintiff.

Louis City Circuit Court. — Hon. H. D.. Wood, Judge-. (1) Tbis proceeding to assess damages and benefits for-changing the grade of the streets is but one case, though all parties owning property within the benefit district aré parties defendant, and though it affects separately all the parcels of' property within such district. E. S. 1899, secs. 6109-6114; Eailroad v. Erwin, 50 Mo. App. 552.

— Hon. E. J. Broaddms, Judge. (1) (a) The court erred in admitting in evidence, over 'plaintiff’s objection, the deed from James B. Davenport to William L. Sublette and eleven other grantees, dated August 17, 1843. That deed is void. Not less than a majority of three commissioners, after having been ordered by the court to execute it, could have made a valid deed.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) A failure to comply with the requirements of a city ordinance constitutes a breach of duty to the public for which one injured because of it may recover the damages sustained. Drain v. Railroad, 10 Mo. App. 531; Skinner v. Stifel, 55 Mo.

Louis City Circuit Court. — Hon. Wm. Zachritz, Judge. (1) The demurrer offered by appellant at the close of respondent’s evidence should have been sustained by the trial court, since no witness for plaintiff was able to prove that the sidewalk had been unsafe previous to.

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. Where the duration of the office of the principal is recited in the bond, though 'the words in the condition are general as to time, the surety is not liable for defaults of the principal occurring after the expiration of the term recited. Arlington v. Merrieke, 2 Saund. 411; Water. Works Co. v. Atkinson, 6 East 507; Moss v. State, 10 Mo. 338.

— Hon. B. P. Gates, J udge. (1) There was no service of process on appellant, no entry of appearance, and the judgment is void. Hence, respondent could obtain no title at sheriffs sale, and the appellant’s peremptory instruction should have been given and respondent’s refused. Black on Judgments (1 Ed.), secs. 170, 171, 215, 216, 218 and 220; Eithian v. Monks, 43 Mo. 502; 2 Ency.

<p>1. Practice: Receiving evidence 'subject to objection. The receiving of evidence “subject to objection,” is a bad practice, and will be reversible error if the point is properly preserved by exception.</p> <p>2. Public Hoad: original jurisdiction. The county court is the only tribunal which has original jurisdiction of a proceeding to open a public road. The fact that the county has township organization and township road commissioners, does not deprive the county court of original jurisdiction of such proceeding.</p> <p>-3. -: JURISDICTIONAL MATTERS: ERRORS OP PROCEDURE. The filing of the statutory petition for a public road and the giving of the requisite notice, put the county court in full rightful possession of a proceeding to open a public road. It then has jurisdiction to enter final judgment sustaining the petition or dismissing the proceeding, and errors thereafter committed which are not in excess of the court’s jurisdiction will not render its judgment invalid or subject to collateral attack.</p> <p>"4. --: AT COUNTY’S EXPENSE: PAYMENT BY PETITIONERS. It is not necessary in order to give the county court jurisdiction of a proceeding to open a public road, that the court enter of record a finding to the effect that the facts justify the location of a road at the expense of the county. It has jurisdiction to proceed if the petitioners pay to the county treasurer the probable amount of damages, as fixed at the time by the court. And this requirement of the statute is met if the court makes and enters of record a finding, from the ■ evidence, that, taking into consideration the advantages and disadvantages, the damages would amount to nothing, and thereupon makes an order to the road commissioners to view, survey and mark out the road at the expense of the petitioners, etc.</p> <p>•5. -: -: errors OE judgment. The holding of a county court that it has the right to condemn land for a public road otherwise than at the expense of the county, and the setting off against a landowner’s probable damages advantages not peculiar to him but such as are shared by the public, are not jurisdictional matters, but errors of judgment, if errors at all.</p> <p>6. -: costs of culverts AND grading. The failure of the road' commissioner to estimate the cost of culverts- and grading in his report, is not a failure of a jurisdictional fact, if the report states that their cost was to be paid by the petitioners, and the order of the court finds that the road is a public necessity and orders that it be opened at the expense of the petitioners and the' final order recites that the damages have been paid by them.</p> <p>7. 1-: growing crops. The fact that there was a crop of timothy growing on the land at the time the final decree establishing a public road was entered, but which was harvested before the suit, to enjoin the opening of -the road was tried, should not affect the court’s decree.</p> <p>8. -: damages: payment to treasurer. The payment to the county treasurer for the landowner of the amount of damages 'sustained by him by the opening of a public road, will be considered in a collateral proceeding a payment to him.</p> <p>9. -: FOR PRIVATE BENEFIT: ABUSE OF PROPERTY RIGHTS: COLLATERAL attack. It is an abuse of power and violative of constitutional property rights for a County court to take private property under the guise of taking it for public use when in fact it is only for the convenience of private persons who are willing to pay for it. But it is the duty of the citizen to avail himself of the process of the law provided for his protection, and not quiescently stand by and see a court exercise its rightful jurisdiction without objection or exception from him, and afterwards undertake to overthrow its judgments by collateral proceedings.</p>

— Hon. A. H. Bwrkeholder> Special Judge. (1) The court erred in finding that the land in controversy was subject to sale and execution under the judgment in favor of the city of Trenton against F. M. DeVorss. Duffy v. Willis, 99 Mo. 229; Foreman v. Meroney, 18 Mo. 429; Porter v. Clarke, 18 Mo. 425; Thompson on Homesteads, sec. 287.

— Hon. E. J. Broaddus, Judge. (1) The county court properly levied and assessed the tax of twenty cents on the one hundred dollars valuation under and pursuant to the mandate of the circuit court. R. S. 1889, sec.- 7653, as amended by Laws 1893, p. 219; R. S. 1889, sec. 7654; (2) This statute is legal and valid and is in aid of section 12, article 10, Constitution.

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

— Hon. H. D. Wood, Judge. (1) Tbe State failed to introduce evidence sufficient to prove tbat Wilhelm Mueller was an elector. The State proved that William Mueller was a native of Germany, and-consequently that he was not an elector. Art. 8, see. 2, Constitution; sec. 7232, R. S. 1899; State v. Dan Shelly, 66 S. W. 430.

Louis City Circuit Court. — Hon. H. D. Wood, Judge.' (1) Proceedings in the assessment of taxes .for local improvements are subject to a strict construction and every requirement of the law must be complied with. State ex rel. v. St. Louis, 67 Mo. 113; Whitely v. Platte Co., 73 Mo. 30; Leslie v. St. Louis, 47 Mo. 474; Lind v. Clemens, 44 Mo. 540; Dow v. Chandler, 85 Mo. 245; St. Louis v. Ranken, 96 Mo. 497; Williams v. Monroe, 125 Mo. 587; Leonard v. Sparks, 63 Mo.

— 'Ron. E. M. Ruches, Judge. (1) Tbe demurrer to the evidence should have been overruled, (a) Though the facts are undisputed, if different men might honestly draw' different conclusions from them, the case should be left to the jury. Thompson on Trials, sec. 1663; Railroad v. Stout, 11 Wall. 663; Brink v. Railroad, 11 Mo.

— Eon. J. L. Fort, Judge. (1) The court erred in giving instruction 2 for plaintiff.

— Hon. W. N. Evans, Judge. The court erred in finding for the defendant and finding that he was entitled to any commission out of the amount collected as back taxes other than the penalty prescribed. Sec. 9260, R. S. 1899. Upon this section he retains five per cent on current taxes. The exception is only as to back taxes.

— Hon. Henry G. Riley, Judge. (1) The proceeding for condemnation, being in rem and purely statutory, every material requirement of the statute must be strictly complied with, and all facts required by the statute to be stated must affirmatively appear on the face of the record, ox the county court will not acquire jurisdiction over the subject-matter.

— Hon. Gallatin Graicj, Judge. (1) The court rejected proper and legal evidence,, offered by the appellants, to-wit: The evidence of Mrs. Mathers, a daughter, that her “mother claimed in 1892 that real estate in the village of Wilcox, Missouri, to which George held a deed in his name and claimed, was hers,” to show that her mind was diseased, or, that she thought George had robbed her; and the evidence that George, one of the respondents, declared in 1898 that his mother was…

— Hon. ~W. K. James, ■ Judge. (1) The trial court erred in refusing to give to the jury the instruction in the nature of a demurrer to the evidence offered by defendant at the close of the plaintiff’s testimony. There was no evidence that the ridge of ice on the sidewalk caused plaintiff to fall. The plaintiff herself-testified that she fell because she slipped on the slick ice. Mueller v. Milwaukee, o Munic.

— Hon, Jos, D. Perkins. , Judge. (1) The court erred in not requiring the State to elect upon which transaction it would ask the jury to convict They were.separate and distinct transactions. The. two hundred dollars was given by the prosecuting witness in Illinois. The eight hundred dollars was sent to the prosecuting witness’s son at Joplin, Missouri, and by him delivered to' the defendant.

Appeal fro-m Washington Circuit. Court. — Hon. F. B. Decring, Judge. (1) The circuit court of the twenty-first judicial circuit had no jurisdiction to try this case, the sáme having been illegally sent from St. Erancois county. R. S. 1899, secs. 2594, 2595 and 2597. (2) The defendant has a constitutional right to trial in St. Francois county, which he has never waived or relinquished. Constitution, art. 2, see. 22.

Louis City Circuit Court. — Hon. S. P. Spencer, Judge. (1) The two-year statute of limitation began to run against the claim of Wyatt Eyans on the date of letters, and in the language of the statute: “he must present his demand to the court in the manner provided by law for allowance within two years.” He must “exhibit a copy of such judgment or decree.....to the probate court.” “Such court shall determine its class, and when thus classed the executor or administrator may…