Volume 177 — Missouri Reports

Quo Warranto. (1) The objection made by respondents to the effect that the order was improperly and improvidently made can not be seriously considered for the reason that if the statute be legal the statement of the Attorney-General to the effect that said witnesses and books were necessary and material to the controversy would be sufficient to authorize the commissioner in executing the order.

Transferred from St. Louis Court of Appeals. (1) The court erred in submitting this case to the jury, (a.) There was no express employment of plaintiff except by the construction committee (if that was a valid appointment), no evidence of any express promise to pay for services, and no evidence from which a jury should have been allowed to infer or conjecture a promise by defendant to pay plaintiff for such services as he rendered as engineer of joint construction; Allen’s…

Mandamus. (1) The Constitution of Missouri confers upon this court exclusive jurisdiction on appeal from circuit courts “in cases involving the construction of the Constitution of the United' States or of this State.” It is by virtue of this language that we assert the Supreme Court and not the Kansas City Court of Appeals has jurisdiction of the case of Curtice v. Schmidt on appeal from the circuit court.

— New. Jno. W. Wofford, Judge. (1) The court erred in permitting the prosecutor to state in his opening statement, and to introduce testimony on behalf of the State, tending’ to show a conspiracy, and the acts and statements of the claimed conspirators. The offense of conspiracy, even if murder be the result, is as separate and distinct an offense as that of robbery. A conspiracy can not be by one person.

- — No». II. C. Timmonds. Judge. (1) Defendant Hensley having given, and defendant Gailey having taken, a deed of trust on Hensley’s-real estate for $2,800, when according to their own testimony Hensley was then indebted to him at most not exceeding $2,300, was a fraud upon the plaintiff and avoids the conveyance, even conceding that Hensley owed the $2,300.

<p>1. Contempt: power to punish. The power of a court of record to punish for contempt is as old as the law itself.</p> <p>2. -: freedom of the press. Freedom of the press means freedom to write and publish the truth; it does not mean freedom to write and publish falsehoods concerning public officials which impute to them corruption. An editor may write what he will so long as he tells the truth; but if he writes and publishes a falsehood he is liable for punishment just as are other men for mala in se or mala prohibita.</p> <p>3. --: false writings. To write and publish a falsehood concerning the court or its judges sitting in their judicial capacity, charging them of being corrupt and as having been bought to render a decision, is contempt of court.</p> <p>4. -: punishment: trial by jury. Cases of contempt of court are not triable by a jury. The power to punish contempts summarily is inherent in all superior courts of record, and has been from time immemorial.</p> <p>5. -: ■— -: constructive contempts. - Constructive contempts of court arise from matters not transpiring in court, and which tend to degrade or make impotent the authority of the court, or in some manner to. impede or embarrass the administration of justice. The power of the court to punish for such contempts is the same as in direct contempts committed in the presence of the- court.</p> <p>C. -: -: DUTEEENCE BETWEEN DIRECT AND CONSTRUCTIVE contempts. The difference between direct and constructive con-tempts is not one of power to punish, but only one of procedure. In direct contempts the court acts spontaneously, on its own motion, and commits the offender summarily; in constructive contempts, the court, upon information furnished by any citizen and verified by affidavit, or exhibited by the Attorney-General ex-officio, which needs no verification since it is supported by his official oath, or upon its own information or motion, issues a citation to the offender to show cause why he should not be punished.</p> <p>7. -: scandalizing the court. A contempt which consists of scandalizing the court itself is a matter where the State, the people and the court are-vitally interested.</p> <p>8. --: -: cause pending. The injury to the public primarily in scandalizing the court itself is just as great whether it refers to a particular pending case, or only to the court as an instrumentality of government. And a constructive contempt of that character is none the less contemptuous because the case, to which the contemnor in his newspaper referred, has already been disposed of.</p> <p>9. -: charging the court with bribery. A newspaper article charging the decision of the court, in a cause still pending, to be the result of corruption and bribery by one of the parties, is both civil and criminal contempt. It is criminal, because it scandalizes the court itself, and therefore it is a matter of public concern; it is civil, because it abuses parties tó a cause still pending, and because it seeks to prejudice mankind against parties to such pending litigation.</p> <p>10. -: notice oe contempt. The Supreme Court is the people’s court, and if it did not take notice of a newspaper article which charges it to be corrupt and its decision in a certain cause to be the result of bribery, the people would have just cause to complain of its judges for not enforcing proper respect for this instrumentality established by them for the administration of justice.</p> <p>11. —-: regulation by statute. The Legislature has no power to take away, abridge, impair, limit or regulate the power of courts of record to punish for contempt. And section 1616, Revised Statutes 1899, in so far as it attempts to do that, is unconstitutional.</p> <p>■12. -: -: separate magistracy oe courts. The Constitution distributes the powers of government between the legislative^ executive and judicial departments, and expressly provides that “no person, or collection of persons, charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except in the instances in this Constitution expressly directed and permitted;” and the Constitution nowhere stating that the Legislature is given any power to enact any law regulating or limiting the inherent power of the courts to punish for contempts, the courts, being themselves creatures of the Constitution, can not be shorn, limited, abridged or regulated by the Legislature in the exercise of that inherent power. That was a power .which the people conferred on the courts when by their Constitution tliej' created the judicial department of the Government.</p> <p>13. -: by what court punishable. The court in which a contempt is committed, or whose authority is defied, alone has power to punish it, or to entertain proceedings to that end. No other court has jurisdiction in such ease.</p> <p>14. -: trial by jury. To grant to the contemnor a trial by jury for scandalizing the court by charging in a newspaper that the judges were bought to render a certain opinion, would be illegal, and a shirking by tne iudges of their imperative duty under the law. If the scandalizing article refers to a decision of the Supreme Court, the law does not permit it to send the matter to another court to-be tried, either by the judge, or a judge and iury.</p> <p>15. -: -: CONSTITUTIONAL right. The right of trial by jury in contempt eases never existed at common law, and was wholly unknown in Missouri at the time of the adoption of the Constitutions of 1820, 1865, and 1875. Therefore the present Constitution in saying that “the right of trial by jury as heretofore enjoyed shall remain inviolate” did not guarantee to the contemnor a right to a jury trial, for that right had never been enjoyed before. It had theretofore been the universal law, both in America and England, that contempts were punishable by the court.</p> <p>16. -: -: issues oe eacts. Where the contemnor, cited to appear and show cause why he should not be punished for contempt for charging that the judges of the Supreme Court had been bought to render a certain decision, by his written return admits that he wrote and published the charge in his newspaper, and offers nothing in mitigation of his conduct, and openly announces that he does not wish an opportunity to prove the truth of his charge, there is no fact in issue for the jury to pass upon, even if the law .guaranteed him a jury in such ease. After such return there are only questions of law to be decided.</p> <p>17. -: due process op law. One who has been regularly charged with contempt in an information filed by the Attorney-General, has been brought into court, has appeared in person and by counsel, has pleaded, and has had a trial according to the law of the land and the practices in such eases, has not been denied due process of law.</p> <p>18. Freedom of Press: extraordinary liberty. Editors have no greater liberty of speech than any other citizen. Freedom of the press is not separately mentioned in the Missouri Constitution. The • Constitution simply says “that every person shall be free to say, write- or publish whatever he will on any subject, being responsible for all abuse of that liberty.” That means that newspapers and citizens have the same right to tell the truth about any body or any institution, and that neither has any right to scandalize any one or any institution. Nor does the Constitution of the United States confer any special freedom on the press that is not conferred on the citizen.</p> <p>19. -: abolition op censorship. The constitutional provisions preventing the enactment of laws “abridging the freedom of the press” were meant to do away with censors and licensers. Since then editors have been privileged to write and publish whatever they please, but for an abuse of that liberty they may be punished. If they write only the truth, and do it in an orderly and decent way, 'they can not be punished. If they traduce their fellowmen or scandalize the courts by the publication of falsehoods, those constitutional provisions do not exempt them from punishment.</p> <p>20. -: indulgence. Conductors of the public press have no peculiar rights or privileges or claims to indulgence. They have just the same rights that the rest of the community have, and no more.</p> <p>21. -: defamation and criticism. There is a wide difference between defamation and criticism. Every editor and every private citizen is entitled to pass an opinion on everything which in any way invites public attention. But wicked or corrupt motives should never be wantonly assigned to a court; unless there is some foundation in fact for such charges, they become, not criticism, but criminal contempt.</p>

— Now. Geo. N. Longan, Judge. (1) Where an attorney makes improper remarks in his argument to the jury, it is not sufficient for the court to sustain an objection thereto, but it must direct tbe jury to disregard same; and even then, a new trial may be granted. Smith v. Tel. Co., 55 Mo. App. 628; Ensor v. Smith, 57 Mo.

<p>1. Wills: DOUBLE LIMITATIONS: FEE UPON A fee. A fee can not be limited upon a fee, nor can the entire fee be limited to two different persons or sets of persons at the same time, each to the exclusion of the other.</p> <p>2. ---: equitable estate. Equitable estate's are subject to the same incidents, properties and consequences as belong to similar estates at law.</p> <p>S. —--: contingencies which do not abise. The provisions of a will authorizing the trustee to disinherit certain sons in the event that they become drunkards, gamblers or spendthrifts are of no importance in determining the estate taken by such sons, if none of them became drunkards, gamblers or spendthrifts and none of them were in fact disinherited. So likewise would be an unexecuted power to sell.</p> <p>4. ---: “my property.” The expressions in a will referring to the property devised as “my property” are referable to the property at the time the will was written, and not to the date it took effect, and are, therefore, valueless in determining what estate passed to any one under the will.</p> <p>5. -: EQUITABLE ESTATE:' PEE BY IMPLICATION. A testator by his will gave certain lands to his brothers as trustees, to “take charge of, manage and control so as to derive therefrom the largest income which is consistent with the safety of the capital,” and “apply the income to the education and support” of his three minor sons “in equal proportions,” and “if any of my children die before arriving at the age of twenty-one years, and without issue, the share of such child shall go in equal proportions to my surviving children . . . and in case of the death of all of my children without issue within the age of twenty-one years, my will and desire is that my estate shall vest in my brothers.” Be gave the trustees power to sell the real estate, and directed them not “to give to my said children or either of them his share or shares of my estate to manage for himself or themselves until he or they shall be fully capable of exercising a safe, prudent management thereof.” All the children reached their majority, and one of them died without issue, by his will leaving his estate to his two brothers. Held, that the will did not give the sons simply an equitable life estate, with the fee limited to their heirs by necessary implication, but gave an equitable fee-simple estate to the three sons, the legal title being in the trustees for the particular purposes named in the will. And when the trustees and the. surviving sons joined in a deed in a friendly partition of the lands, the legal and equitable title united in the respective grantees.</p> <p>6. -:--: words oe inheritance. Where the equitable fee-simple title, to afterwards ripen, upon certain conditions, into a full legal and absolute fee-simple title, is created by the will in certain devisees, there is no necessity for the will to contain words of inheritance.</p> <p>7. --: limitation by implication. Where the intention of the will is to create a fee-simple estate in the devisees, there can be no limitation by necessary implication to the devisees’ children.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Wm. Zaehritz, Judge-</p>

Louis City Circuit Court. — Hem. 8- P. Spencer, Judge. (1) Relator, if he ever had any right, can not now recover because the facts show that he and his assignors acquiesced in the police board’s orders of dismissal, considered the same final, and abandoned any claim they might otherwise have had.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) This case is entirely like Chapman’s case, 153 Mo. 194. There is absolutely no difference between the two cases, except that Chapman sued before his term expired, while this relator sued after expiration but yet within the statutory period, and that has aL ready been shown to be a distinction without a difference. The Chapman case was well considered and properly decided, and it is decisive of this case.

<p>Appeal from St' Louis City Circuit Court. — How. D. D. Fisher, Judge.</p>

<p>Turnkey: teem: removal. The police act for St. Louis vested the board of police commissioners with the power to fix the terms of the officers of police, including the turnkey, and if the board has not done so, the officers hold for an indefinite term, and are liable to be removed at any time, without notice, charges or hearing.</p>

<p>Police: patrolman : aitointment by implication. Where a patrolman was appointed for a term of four years and held over for two years longer, he was not thereby, within the meaning of the St. Louis police act, reappointed by implication for a term of four years from the expiration of his first four-year term, but may be dropped at any time.</p>

<p>Officer: holdover: removal without cause. Under the police law for St. Louis, a patrolman who has served the term for which he was appointed, and thereafter holds over, can be removed at any time. He is not entitled to another term of four years on the theory thht by being permitted to continue in office after his term expired he was, by implication, reappointed for another term.</p>

<p>Officer: police captain: removal. The term of a police captain of St. Louis is indefinite, and if appointed for no fixed term he can be removed at any time.</p>

<p>The judgment in this ease is affirmed on the authority of State ex rel. Rife v. Hawes, reported at page 360 of this volume.</p>

<p>Appeal from St. Louis City Circuit Court. — Wm Wm. Zachrits, Judge.</p>

<p>The judgment in this ease is reversed on the authority of State ex rel. Rife v. Hawes, reported at page 360 of this volume.</p>

<p>The judgment in this case is affirmed on the authority of State ex rel. Rife v. Hawes, reported at page 360 of this volume.</p>

<p>The judgment in this ease is affirmed on the authority of State ex rel. Rife v. Hawes, reported at page 360 of this volume.</p>

<p>The judgment in this case is affirmed upon the authority of State ex rel. Kife v. Hawes, reported at page 360 of this volume.</p>

<p>The judgment in this ease is reversed on the authority of State ex rel. Rife v. Hawes, reported at page 360 of this volume.</p>

<p>The judgment in this case is reversed on the authority of State ex rel. Rife v. Hawes, reported at page 360 of this volume.</p>

<p>The judgment in this ease is affirmed on the authority of State ex rel. Rife v. Hawes, reported at page 360 of this volume.</p>

<p>Appeal from St. Louis City Circuit Court. — Ro». S. P. Spencer, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Row. O’Neil By an, Judge.</p>

<p>The judgment in this case is reversed on the authority of State ex rel. Rife v. Hawes, reported at page 360 of this volume.</p>

<p>The judgment in this ease is affirmed on the authority of State ex rel. Rife v. Hawes, reported at page 360 of this volume.</p>

<p>The judgment in this case is reversed on the authority of State ex rel. Rife v. Hawes, reported at page 360 of this volume.</p>

— Hon. E. P. Gates, Judge. (1) Appellant complains of the decree of the court for the reason that it is not supported by the evidence in this ease, and is erroneous.

Louis County Circuit Court.- — Row. John W. Booth, Judge. (1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered by defendant at the close of plaintiff’s evidence in chief, and at the close of all the evidence, for the following reasons: (a) Because the plaintiff in this case brought his suit on the theory that he was working for the defendant as an independent contractor, and not as the servant of defendant.

Louis City Circuit Court. — if o». P. R. Flitcraft, Judge. (1) The court should have given the peremptory instruction - requested by the defendant at the close of the whole case, for the reason that under the undisputed facts a clear case of contributory negligence was made out against the driver of the wagon, and through him against the plaintiff. (2) The only criticism which can be made of defendant’s first instruction is that it is improperly punctuated.

— No». E. P. Gates, Judge. (1) (a) It does not appear that the next friend of plaintiff gave bond as such, or that he was relieved of such requirement by the clerk of the court, making the appointment. This made a jurisdictional defect, which supported defendant’s objection to the introduction of evidence, under the petition. R. S. 1889, secs. 2001 and 2002; Spillane v. Railroad, 111 Mo. 555.

— Eon. Jos. D. Perkins, Judge. (1) Plaintiff introduced in evidence no ordinance contract described in plaintiff’s petition. There was a complete failure of proof, and the finding’ should have been for defendant. (2) Plaintiff offered no evidence that it complied with its contract. It conceded by offering’ no evidence in rebuttal that it failed to comply with it. It could recover only for the. value of the water furnished and accepted by the city.

— Non. Samuel Davis, Judge. (1) Section 2659 (which was a part of the legislation of the extra session of 1887) expressly provides: “This act is not intended to repeal any law now in force, not in direct conflict, but is intended to be supplemental to such laws.” It is clear that section 2629, was enacted in pursuance of two sections of the Constitution and contains the exact language of section 12, and that section of the Constitution made it mandatory on the Legislature to…

Prohibition. (1) The petition of the bridge company for injunction against the Terminal Railroad Company et al. had been filed in the office of the clerk of the circuit court of Cape Girardeau county, as provided by law, before its presentation to relator as judge of the probate court.

Louis City Circuit Court. — Now. Franklin Ferris, Judge. (1) The second defense to the first cause of action states a complete contract fully performed on one side. Thus it is taken out of the statute of frauds. Dozier v. Watson, 94.Mo. 328. The oral contract set up by defendant was not within the statute of frauds because it might have been performed within a year.

Louis County Circuit Court.— Eon. Jno. W. McElhinney, Judge. (1) The burden of proof was on plaintiff. Bank v. Worthington, 145 Mo. 100. (2) The deed was made by sufficient authority of the board of directors, without which plaintiff would have no standing in court to prosecute this character of action. Swentzel v. Inv. Co., 168 Mo. 279. (3) The deed was not voluntary or fraudulent, and is supported by a consideration.

1. Negligence: party dependant: attorney in pact: trustee in possession. Held: that the .trustee was not a mortgagee in possession, but a mere agent of the landlord or mortgagor, and the proper defendant to a suit for damages by a passenger on an elevator who was injured by the negligent operation of the elevator by the employee in control thereof, was the mortgagor. 2. --: ELEVATOR OPERATORS: CARE AND CAUTION.

Transferred from Kansas City Court of Appeals. (1) The law presumes, in the absence of evidence to the contrary, that where freight is shipped over more than one road and at the time it reaches its destination is in a damaged condition, the damages occurred on the road of the last carrier. Flynn v. Railroad, 43 Mo. App. 439; Crouch v. Railroad, 42 Mo. App. 248; Lin v. Railroad, 10 Mo. App. 131; Hutchison on Carriers (1 Ed.), sec. 761, p. 589; 6 Am. and Eng. Ency.

— Ho». Jas. E. Hazell, Judge. (1) It was error to permit counsel for the State to ask defendant, when she was being cross-examined, where she got the razor with which she cut Bert Christian. Defendant was not interrogated during her examination in chief, about the razor or anything pertaining to it. State v. Patterson, 88 Mo. 91; State v. Chamberlain, 89 Mo. 133; State v. Fullerton, 90 Mo. App. 411; State v. Hudspeth, 150 Mo. 31; State v. Hathhom, 166 Mo. 239.

— Ho». J. W. Alexander, Special Judge. If the theory of the State is sustained, the cattle must have been tied in the wagon behind the seat, defendant and his companion sitting on the seat. They must have driven within thirty feet of witness King. The team must have turned suddenly to the right and turned the hack over, end for end. The team running away made a circle of not more than thirty feet and came out almost where they went in, defendant coming-right out with them.

<p>This is a companion case to the case of State v. Scott, reported at page 665 of this volume, and for the reasons given in that case the judgment in this case is reversed and the cause remanded.</p>

Louis City Circuit Court. — -Hon. W. B. Douglas, Judge. (1) It was error to admit proof of statements made by Joseph Mack. The court and the. prosecuting attorney were clearly mistaken in holding that the law permits a statement of the thief, made in the absence of defendant and not under circumstances binding on him, to be introduced against the receiver for the purpose of proving that the property was stolen. Such evidence is clearly hearsay.

<p>Where, on appeal to the Supreme Court, no hill of exceptions is filed, and there are no reversible errors in the record, the judgment of the trial court will be affirmed.</p>

— Ho», Argus Cox, Judge. (1) Instruction numbered one, asked by the defendant' was properly refused, because the principles declared therein had already been covered in the instructions given to the jury. (2) While it would have been better practice for the State to have introduced the clothes worn by the prosecuting’ witness at the time of the affray as evidence in chief, yet this was a matter resting in the sound discrimination of the trial court.

<p>Where an appellant fails to file a bill of exceptions within the time allowed, and no errors appear in the record, the judgment will be affirmed.</p>

<p>Appeal from Boone Circuit Court. — Eon. John A. Hockaday, Judge.</p> <p>(1) There is nothing in this case that warranted the instructions on manslaughter in the fourth degree. State v. Hopper, 71 Mo. 425; State v. Talbott, 73 Mo. 347; State v. Patterson, 71 Mo. 713; State v. Hersell, 97 Mo. 105; State v. Payton, 90 Mo; 220; State v. Turlington, 102 Mo. 642; State v. Brady, 87 Mo. 142; State v. Phnshon, 124 Mo. 448; State v. Lewis, 118 Mo. 79. (2) The instruction on self-defense erroneously cast the burden of proof on the defendant, and required him to absolutely establish his defense before the jury could acquit; and further mystified and misled the jury from a proper consideration of the defendant’s instruction on self-defense.' State v. Wingo, 66 Mo. 181; Nichols v. Winfiy, 79 Mo. 544; State v. Hicham, 95 Mo. 322. The burden of proof was on the State throughout the whole case; it shifted to the defendant. This instruction reversed the universal rule; it practically assumed that the defendant was guilty, and prohibited the jury from acquitting unless they absolutely believed that the shooting was justified. This instruction is in conflict with the one given on self-defense for the defendant and the jury were left to decide which one of these two instructions to follow. State v. Tatlow, 136 Mo. 678; State v. Luke, 104 Mo. 563. (3) The court erred in refusing to grant defendant a new trial upon the grounds of the newly-discovered evidence of "Whitmore. If defendant had been given the advantage of this evidence upon a new trial, we think the result of the case would have been different. State v. Murry, 11 Mo. 95.</p> <p>(1) There was ample evidence in the case to show violent passion suddenly aroused by reason of the deceased’s having assaulted defendant with the knife. State v. Thomas, 78 Mo. 327. The provocation necessary to reduce from murder in the second degree to manslaughter in the fourth degree may consist of opprobrious epithets, insulting gestures and the like. State v. Bulling, 105 Mo. 204; State v. Thomas, 78 Mo. 327; State v. McKenzie, 102 Mo. 620. Reasonable provocation, such as a blow, will reduce a homicide to manslaughter. State v. Ellis, 74 Mo. 204; State v. Stephens, 96 Mo. 637; State v. Curtis, 70 Mo. 594; State v. Douglas, 81 Mo. 231. So also will the intentional killing of another without malice upon a sudden quarrel or in a heat of passion reduce the crime from murder to manslaughter. State v. Edwards, 70 Mo. 486. Defendant can not be consistent with the well-known rules of criminal law and say that where there is a heat of blood, caused by sufficient provocation, a sudden homicide, committed before the mind has time to act and realize the gravity of the offense, if not justifiable or excusable, is not manslaughter. State v. Bulling, 105 Mo. 204; State v. Starr, 38 Mo. 270. Where the evidence has the least tendency to show that the killing was intentionally done in a heat of passion caused by a blow, an instruction for manslaughter in the fourth degree must be given. State v. Douglass, 81 Mo. 231; State v. Wilson, 98 Mo. 446; State v. Crab-tree, 111 Mo. 136; State v. Herman, 117 Mo. 629; State v. Reed, 154 Mo. 122. (2) Instruction 5 tells the jury that unless they find from the evidence that defendant had reasonable ground to believe, and did believe, that the deceased was about to take his life or to do him some great bodily harm, and that the danger of his doing so was then and there imminent and impending; and that if they believed from the evidence that defendant could have, with safety to himself, avoided the shooting, they should find him guilty. The right of self-defense never arises until the accused has done all in his power to avoid the shooting or killing. State v. Kloss, 117 Mo. 592; State v. Lewis, 118 Mo. 79; State v. Johnson, 76 Mo. 121; State v. Cushenberry, 157 Mo. 168. There is no shifting of burden and no injustice done by the instruction in question. It'properly presented the matter to the jury for determination. (3) The court instructed the jury that it is not sufficient that defendant may have acted upon an honest belief that danger was impending to his life or person, but it must appear from the evidence that he had reasonable cause to apprehend danger, real and imminent, at the time of the killing. This instruction has always been followed when the plea of self-defense was interposed. It is the law and can not be successfully contradicted. It is not sufficient that defendant thought he was in danger; he must have reasonable ground for so thinking. State v. 0 ’Connor, 31 Mo. 389; State v. Duncan, 116 Mo. 296; State v. Eaton, 75 Mo. 586; State v. Brown, 63 Mo. 439 ; State v. Alley, 68 Mo. 124. The jury are the sole judges as to the .time when the assaulted party may strike and the degree of force he may use to defend a violence and injury to himself. State v. Stockton, 61 Mo. 383.</p>