Volume 181 — Missouri Reports

<p>TAXATION: Assessment Against Bank. The assessment of personal taxes should he against the stockholders of the hank and not against the hank itself.</p>

<p>TAXATION: Assessment Against Bank. The judgment in this case, which was for personal taxes assessed against a national hank, and not against its stockholders, is reversed on the authority of State ex rel. v. Bank, 180 Mo. 717.</p>

<p>TAXATION: Assessment Against Bank. The judgment in this case, which was for personal taxes assessed against a national hank, and not against its stockholders, is reversed on the authority of State ex rel. v. Bank, 180 Mo. 717.</p>

<p>TAXATION: Assessment Against Bank. The judgment in this case, which was for personal taxes assessed against a national hank, and not against its stockholders, is reversed on the authority of State ex rel. v. Bank, 180 Mo. 717.</p>

— How. E. M. Sorber, Special Judge. (1) The court erred in permitting- voters and judges of election to identify voters and their ballots, • and to testify whose names appeared on such ballots for the office in contest. The judges have no right to know or disclose for whom any voter voted. R. S. 1899, secs. 6995 and 7114.

<p>Appeal from Sullivan Circuit Court. — No». E. M. Barber, Special Judge.</p>

— Hon. Jno. W. Wofford, Judge. (1) The information charges that the money taken from Mills was his property. The evidence shows he had no interest in the same and that the taking was not in the presence of the true owner. Such variance is fatal.' State v. Lawler, 130 Mo. 366; State v. Morledge, 164 Mo. 522. (2) The court erred in giving State’s instruction 2. It is not predicated on the evidence.

— How. James U Fort, Judge. (1) The statutes provide that if any common carrier shall do, or cause to be done, any act or thing’ in the statute declared to be unlawful, it shall be liable to the person or persons injured for three times the amount of damages sustained by reason of said violations,-etc. R. S. 1899, seo. 1140.

— Hon. J. L. Fort, Judge. (1) The contract for the extra work sued for is not void, but especially provided for in the “fourth” clause of the original contract; as this work merely consisted of alterations from the original plans and specifications. This suit is for work and labor done and materia]s furnished in good faith by plaintiff, as is admitted.

— Hon. Henry C. Pepper, Judge. (1) Upon all the facts given in evidence, there is nothing to sustain the conclusion that the testator was not possessed of all the qualifications of memory and of knowledge necessary to qualify him to make a will, or that he did not act deliberately and intelligently in making the will in question, and the will was formally executed. There was nothing for the jury to pass upon.

— Wo». Jno. W. Henry, Judge. (1) When by a deed of trust the parties contract tbat in ease of tbe death or disqualification of tbe trustee, the then sheriff of the county (whoever he may he) shall thereupon become his successor to the title, he acts as an individual, and not officially, and therefore, neither he nor his sureties are liable on his official bond for his abuse of such trust. Chase v. Davis, 88 Mo. 585; Harwood v. Tracy, 118 Mo. 631.

— Sew. John W. Henry, Judge. (1) Defendant’s policy of insurance is to be interpreted in all respects by tbe same rules as other contracts, and so as to ascertain the meaning and intention of the parties thereto from the whole instrument. Renshaw v. Ins. Co., 103 Mo. 595; Brewing Co. v. Ins. Co., 63 Mo. App. 663; Hoover v. Ins. Co., 93 Mo. App. 111.

Transferred from St. Lonis Court of Appeals. (1) The court erred in refusing the instruction directing a verdict for the defendant. Louisville Gas Go. v. Gutenkuntz, 82 Ky. 432; Brewing Ass’n v. Talbot, 141 Mo. 682. (2) The court erred in its first instruction given for plaintiff in charging that the defendant in the use of the stove was bound to the exercise of such care as is required of persons who undertake the use and management of explosives.

— Ho». Jas. D. Fox, Judge. It does not appear that appellants excepted to the overruling of their motion for a new trial, nor does it appear that any hill of exceptions was filed; hence, nothing but the record proper can be reviewed. Meier v. Hinkson, 146 Mo. 458.

— Row. Jno. W. Henry, Judge. (1) The court erred in admitting evidence of specific instances of intoxication of plaintiff months prior to the accident. Brown v. Railroad, 66 Mo. 597; Owens v. Railroad, 95 Mo. 182. The character and habits of plaintiff were not material to any issue in the case, and therefore its admission was reversible error. Vawter v. Hultz, 112 Mo. 633; Gutzwiller v. Lackman, 23 Mo. 168; Rogers v. Troost, 51 Mo. 470; Alkire Grocery Co. v. Tagart,'78 Mo.

— Ron. Gallatin Craig, Judge. (1) The court erred in overruling defendant’s motion for a new trial. There was not sufficient evidence to justify a verdict. When the evidence of the plaintiff does not entitle him to a verdict, or when the evidence greatly preponderates against the verdict, a new trial will be ordered by this court.

— Now. A. D. Burnes, Judge. (1) Under section 2474, Revised Statutes 1899, neither two judges of-the county court, nor the court itself, had the power to make a promise for the county, or in any way bind the county to pay money to a third person in trust for the person apprehending a felon, and the promise relied on in this case to pay $300 to the city treasurer of the city of Cameron for the person apprehending the murderer of George H. Leonard, is void as to the county.

Louis City Circuit Court. — Hon. W. B„ Douglas, Judge. (1) Defendant’s motion to quash the information herein, or the motion to arrest the judgment upon the ground that the information was not verified either by the oath of the circuit attorney or of some person competent to testify as a witness, or upon the ground that it was not based upon the affidavit of some private person filed with the clerk of the court as required by law, should have been sustained.

— Eon. Jno. W. Wofford, Judge. (1) The statement made by the prosecuting attorney when examining jurors as to their qualifications to sit in the case, commencing with, ‘ ‘ The evidence in the case will tend to show,” was all improper, hut inasmuch as most of the facts stated did not prejudice the rights of appellant we do not object to them.

— Eon. Wm. A. Davidson, Judge. (1) The trial court erred in overruling’, over defendant’s objection, defendant’s motion for a continuance. The purpose of the law is to afford the accused an equal chance with the accuser, not only upon the trial of the cause, but also as to the means to prepare for the trial. This right of the accused is substantive; if this right is denied, the right of a fair and impartial trial is also denied.

— Hon. Hugh Dabbs, Judge. (1) “All courts shall have due regard to the directions of the will, and the true intent and meaning of the testator.” R. S. 1899, sec. 4650. (2) This was the common law rule, incorporated into our statutes, and is subject to the limitation that, unless there is an ambiguity, the intention must be determined from the will itself. Webb v. Archibald, 128 Mo. 308; Schorr v. Carter, 120 Mo. 413; Thomas v. Thomas, 149 Mo. 435.

Transferred from St. Louis Court of Appeals.- (1) The court erred in submitting this cause to the jury: (a) Because there was no substantial evidence of negligence on the part of defendant. Payne v. Railroad, 136 Mo. 562; Schmitz v. Railroad, 46 Mo. App. 387; Pueschell v. Iron Works, 79 Mo. App-. 464; Lien v. Railroad, 79 Mo. App. 479; Spohn v. Railroad,-87 Mo. 84; State v. Nelson, 118 Mo. 124; Empey v. Railroad, 45 Mo. App. 422; Lionberger v. Pohlman, 16 Mo.

—Eon. Wm.- L. Jarrott, Judge. ■ (1) The alteration of a note does not discharge the mortgage by which it is secured, in the absence of fraud. Baskin v. Wayne, 62 Mo. App. 515; Hoffman v. Molloy, 91 Mo. App. 367; Clough v. Seay, 49 la. Ill; Vogle y. Ripper, 34 HI. 100; Smith v. Smith, 3 S. E. 78 (1) Any alteration in a note, whether material or not, if made by interested party, releases all parties not consenting thereto. Farmers Bank v. Myers, 50 Mo. App. 157; First Nat.

Louis City Circuit Court. — -Hon. O’Neill Ryan, Judge. (1) The information, in the absence either of verification or affidavit in support thereof, was insufficient, and the motion to quash should have been sustamed. State v. Jones, 168 Mo. 398; State v. Bonner, 178 Mo. 424. (2) The verdicts are not responsive to the charge contained in the information, nor to the issue submitted by the . instructions of the court.

Court. — IT on. E. M. Hughes, Judge. (1) The plea is the first step in the trial. The defendant must be present in person in a felony ease, his plea duly taken, and the record must show this fact affirmatively. (2) While the court is not bound to-take the affidavit of a party that the sheriff is prejudiced against him as conclusive, and while it has some discretion about the matter, yet, if this discretion is abused,, it is reversible error.

— How.. Samuel Davis, Special Judge. . When the court ordered the jury to “get together and make a verdict,” commenting on their “pride of opinion” with sarcasm, calling their attention to outside interests, they were no longer possessed of .free judgment as to the disputed facts in the case; wherefore, we are forced to the conclusion that error was committed, and the judgment ought to be reversed.

— lion. Frank R. Bearing, Judge. • (1) The court erred in refusing to instruct the jury that the alleged offense was barred by the statute of limitations. Three years and nearly four months intervened between the alleged bigamous marriage, which occurred on the twentieth of September, 1898, and the finding of the indictment on which the case was tried, said indictment having been filed on J anuary 13, 1902.

<p>MANSLAUGHTER: Evidence. Evidence held sufficient to justify a verdict of guilty of manslaughter in the fourth degree.</p>

<p>APPELLATE PRACTICE: Affirmed on Record. Where there is nothing before the appellate court hut the record proper, and that is free from error, the judgment will he affirmed.</p>

<p>NO BILL OF EXCEPTIONS: Record Free From Error. Where defendant files no bill of exceptions, there is nothing for review except the record proper, and if that is free from error, the judgment will be affirmed.</p>

— Eon. Nat. M. Shelton, Judge. (1) Mrs. McCormick, since 1855, the date of Flore’s making the mortgage to Wood, Bacon & Company, seems to have been in exclusive possession of al! four forties to her death. She left in possession and mistress of the situation her daughter, Mrs. Manning, whose husband had furnished the money, apparently, to make all the substantial improvements.

— Hon. W. K. James, Judge. (1) There was no evidence that the Missouri Pacific train struck plaintiff. (2) There was no proof that the bell was not ringing on the Missouri Pacific engine. (3) The rule is that affirmative evidence of the kind given for defendant can not be and is not impaired or affected in any degree by such negative evidence as that introduced by plaintiff.

— Ho». W. W. Graves, Judge. (1) Where the evidence tends to show that an accident occurred in any one of two or more ways, one of which renders defendant liable and the others do not, the burden of proof is upon the plaintiff to show that it occurred in the manner which renders defendant liable.

— Hoot. ' J. H. Slover, Judge. (1) Under the terms of the statute, if the widow sues within six months, there being minor children, the one designated and made liable by the statute, she thereby appropriates the cause of action created by the statute, and the minor children are thereafter barred and estopped from suing upon or appropriating the same cause of action, and it is within the power of the widow to settle, compromise’ or dismiss her suit and the minor children…

— Hon. Wm. L. Jarrott, Judge. (1) Under the circumstances in this case, defendant, at time and place of accident, owed to plaintiff the duty of exercising ordinary care. Ray’s Neg. Imp. Duties (Passenger), sec. 33, p. 95; 4 Elliott on Railroad, sec. 1590, pp. 2477-8-9; Kelly v. Railroad, 112 N. Y„ 443; Laflin v. Railroad, 106 N. Y. 139; Cross v. Railroad, 69 Mich. 367; Buenemann v. Railroad, 32 Minn. 392;. Railroad v. Gross, 21 S. W. 186; Moore v. Railroad, 84 Mo. 487.

— No». W. B. Teasdale, Judge. (1) The court should have directed a verdict for defendant: There was not a particle of evidence in the case tending to show negligence on the part of the defendant; and when there is no substantial evidence to establish the facts which it is incumbent upon the plaintiff to prove, the court shpuld direct a verdict for the defendant.

— Now. Jas. E. Easell, Judge. (1) The court erred in sustaining the demurrer and dismissing the bill. The distinction between an equitable mortgage and a trust is that so long as a debt is secured it is an equitable mortgage, and if it secures the payment of money it is a mortgage, no matter what form it may assume. Walse v. Drummit, 21 Mo. 325; Sewell v. Kedler, 13 Mo. App. 189; Schradsld v. All-bright, 93 Mo. 42.

<p>1. INSTRUCTION: Interest of Witness: Civil Case. Where the court, in a civil case, instructs the jury that they are to take into consideration the interest, if any, which the witnesses have in the result of the litigation, and that if they believe any witness has knowingly and willfully sworn falsely to any material matter in issue, they will disregard the whole or any part of such witness’s testimony, it is not error to refuse another instruction telling the jury that plaintiff is a competent witness in her own behalf, yet in determining what weight, if any, they will give her testimony, they have a right to consider her interest in the result of the litigation, and what she has testified' to against her interest, if anything, is to be taken as true, and what she has testified to in her favor is to be given only such weight as the jury may believe from all the evidence in the case it is entitled to, unless plaintiff’s evidence discloses such admissions on her part adverse to her right to recover as make it incumbent on the court to indicate to the jury that such admissions affect her right of recovery.</p> <p>2. NEGLIGENCE: Confined to Allegations. An Instruction is not erroneous which confines the issues to the negligence charged in the petition, and can not be said to give the jury a “roving commission” because it does not tell the jury that they are not to consider other precautions which might have prevented the accident.</p> <p>3. -: General Instruction: Roving Commission: Other Grounds. If it can not be seriously conceived that when ail the instructions are read together and the whole evidence is examined, the jury were misled into returning a verdict for plaintiff upon any other ground of negligence than that alleged in the petition, no one of the instructions, itself true as a gen- ’ eral proposition, can be successfully attacked as being too general or as giving the jury a roving commission to consider other acts of negligence than those charged.</p> <p>4. -: Flagman: Presence at Crossing: Signal. It is not. sufficient to tell the jury that the presence of a watchman at a railroad crossing is sufficient warning to a,traveler not to cross. It is the duty of such watchman to warn travelers about to cross, by a signal or otherwise, of the approach of a train. If he is present at the crossing and gives no signal, the traveler may well conclude that it is safe to cross.</p> <p>5. -: -: Absence from Crossing. Where a railroad company has for a considerable time maintained a flagman at a public crossing to advise the public of the approach of trains, and this fact is known to the traveler about to cross, his absence from his post is evidence of negligence.</p> <p>6. -: Crossing Track: Hearing Bell. Plaintiff and her sister and brother, in an open buggy, were returning from church on a dark night, and were struck on a public crossing in the town by a freight train which was backing, it was alleged, without any lights or the ringing of the bell. Her evidence was that when they were two blocks or more from'the crossing, they heard an engine bell ring three or four times below the depot, which was 322 feet from the crossing, and then a puff, and then it stopped, and that after that they heard no bell or other signal or noise indicating that the train was backing or moving towards the crossing; that, after hearing this momentary ringing of the bell, they drove on slowly, stopping and listening and looking, and seeing and hearing nothing to indicate that a train was coming, they slowly drove on to the crossing, and were struck. Held, that the court could not say as a matter of law that there was any such ringing of the bell as precluded plaintiff’s recovery on the ground that she recklessly drove in front of a moving train, of the approach of which she was fully advised. On the contrary, the fact that she was looking for the train to he sure that there was none, discloses prudence and caution rather than gross negligence.</p> <p>7. -: Demurrer to Evidence; Effect of. A demurrer to the-evidence admits the facts the evidence tends to prove, and in passing upon it the court is required to make every inference of fact in favor of the opposite party which a jury might, with propriety, infer in his favor, and if, when viewed in this light, it is sufficient to support a verdict in his favor, the demurrer should he overruled.</p> <p>8. -; Running Train Without Lights or Signáis. The hacking of a freight-train on a dark night, without placing a light on the rear car, or having a brakeman thereon with a lantern ■ to give warning, and without ringing the bell or giving warning of its intention to hack over a much-used crossing in a town of 2,000 people, is negligence; and if, as a result of that negligence, a traveler in the exercise of ordinary caution is injured while crossing the track, the company should pay for-his injuries.</p> <p>9. VERDICT; $8,500. A verdict for $8,500 for a girl seventeen years old at the time of the accident, is not considered excessive in this case.</p>

<p>1. NEGLIGENCE: Exclusive Instruction. It is not error for the-court to give an instruction which sets out seriatim the acts of negligence set forth in the petition and then tells the jury that they are not to consider any other act of negligence as a ground for recovery. - Such an instruction is in the interest of defendant.</p> <p>2. INSTRUCTIONS: How Considered. Instructions must he read, together and considered with reference to each other.</p> <p>3. -: Negligence: Proximate Cause. To use the words “proximate cause” in an instruction in a negligence case is more-likely to mystify the -jury than to aid them to reach a correct conclusion.</p> <p>4. CONTRIBUTORY NEGLIGENCE: Practice. Where the evidence is such that the court would not be justified in assuming that plaintiff’s injuries resulted from his own contributory negligence, th'e question of his contributory negligence is one for the jury under proper instructions.</p>

— Row. David II. Eby,- Judge. (1) The judgment was properly revived by the justice who rendered it, notwithstanding the filing of a transcript in the circuit court. R. S. 1899, sec. 4020; R. S. 1889, sec. 6288. And the record is sufficient; a mere certificate from the justice would have filled the statutory requirements. Ib., sec. 4020.

<p>Appeal from Monroe Circuit Court, — Eoñ. David H. Eby, Judge.</p>

<p>Appeal from G-reene Circuit Court. — Ron. James T. Neville, Judge.</p> <p>(1) The tax deed to McDaniel is regular ou its face, contains all the essential recitals conferring jurisdiction; the property is completely and correctly described, and the legal title to same is thereby well vested in McDaniel, and said deed is not subject to attack in this collateral proceeding, unless the judgment upon which it is based is absolutely void. "Wellshear v. Kelley, 69 Mo. 343; Gray v. Bowles, 74 Mo. 419; Smith v. Nelson, 110 Mo. 552; Brown v. Walker, 11 Mo. App. 233; Knoll v. Woelken, 13 Mo. App. 275. (2) The tax judgment against Reilly, upon which said tax deed is based, is in due form. The court in the trial of that cause had jurisdiction of the subject-matter of the suit, and of the person of Reilly, and the question of the incomplete or insufficient description of the property was a matter of defense at that trial, and was by the judgment in that case finally adjudicated and determined, and that matter can not in this proceeding be again inquired into, nor the judgment ''in that case now be set aside or be in anywise disturbed. Wellshear v. Kelley, 69 Mo. 351; Lewis v. Morrow, 89 Mo. 174; Allen v. McCabe, 93 Mo. 138; Hill v. Sherwood, 96 Mo. 125; Smith v. Nelson, 110 Mo. 552; Knoll v. Woelken, 13 Mo. App. 275. (3) It was competent on the trial of the tax suit, and at the hearing of this, to introduce testimony to explain any ambiguity or vagueness in the description of the premises involved, for the purpose of identifying same, and the testimony introduced here identifies the property mentioned in the tax petition as the same property described in tax deed. Hammond v. Johnson, 93 Mo. 214; Bollinger Co. v. McDowell, 99 Mo. 637; Turner v. Dixon, 150 Mo. 423; Brown v. Woody, 64 Mo. 547; Smith v. Nelson, 110 Mo. 552; Charles v. Patch, 87 Mo. 450; Brown v. Walker, 85 Mo. 262.</p> <p>(1) Before the court could acquire jurisdiction, it was essential that a petition be filed containing a description of the real estate to be affected by the proceeding. R. S. 1899, sec. 575; Schell v. Leland, 45 Mo. 289; Vaughan v. Daniels, 98 Mo. 235. (2) When there is no land described in the petition, there can be no jurisdiction of the subject-matter in such case, and without jurisdiction the judgment is void and open to collateral attack. Bowling v. McFarland, 38 Mo. 460; Vaughan v. Daniels, 98 Mo. 231; Railroad v. Atchison, 137 Mo.. 230. (3) Neither the petition, judgment nor special execution described the property in controversy. The defendant James Reilly had no notification of the tax due on the land in controversy, or his day in court, of the property described in McDaniel’s deed. The difference is not much less than it would have been if the suit had been dismissed and a new one commenced. The proceedings by the sheriff in selling land not described in the special execution were utterly null and void. Janny v. Spedden, 38 Mo. 402; Jones v. Yore, 142 Mo. 45; Milner v. Shipley, 94 Mo. 109. (4) A suit for the collection of delinquent taxes against land is a proceeding in rem; there can be no personal judgment against the owner even when there is personal service. It is only by the petition that .the court acquires jurisdiction of the property and the defendant. Stewart v. Allison, 150 Mo. 343; State v. Wear, 145 Mo. 226. (5) In tax suits the court acquires jurisdiction of the property of the defendant by the filing of the petition, etc., and no judgment can be rendered against property different from that described in the petition, which would not be void and open to collateral attack. Milner v. Shipley, supra.</p>

Transferred from St. Louis Court of Appeals. Revised Statutes 1899, art. 3, chap. 121, is in conflict with the Constitution of this State, in this: It violates that part of section 4, article 2, which says: ‘ ‘ That all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails of its chief…

Louis City Circuit Court. — Hoto. D. D. Fisher, Judge. (1) The court below erred in making the second order of revivor, because the judgment which it purported to revive was then more than ten years old. (a) The legislative history of the subject shows this was error.

— Ho». E. M. Hughes, Judge. No crime was committed and no charge can be sustained against defendant unless by the means employed, if any, he obtained money or property from another, and this he did not do. State v. Schaefer, 89 Mo. 271. The court should have taken this case from the jury.

<p>1. FOREIGN CORPORATION: Comity: When Denied. It is only when some rule of law or principle of policy adopted by this State would be interfered with, by allowing a foreign corporation to do business within this State, that the usual rule of comity, which places foreign corporations on the same footing as domestic corporate bodies, will be refused.</p> <p>2. -: By Citizens of this State. So long as a corporation organized under the laws of another State by citizens resident within this State, pursues a lawful business and violates no law of this State, the Secretary of State can not refuse it a license to do business in this State.</p> <p>3. -: -: Purpose of Avoiding Laws. The mere facts that two of the incorporators of a corporation organized under the laws of New Jersey reside in this State and own all its stock except one share which is owned by a resident of New Jersey, and that its entire capital stock is represented by property located in Missouri, and its business is to be transacted in this State, do not authorize the court or Secretary of State to decide that it was organized under the laws of New Jersey for the purpose of evading the laws of this State under a law which declares that “the Secretary of State shall not license any foreign corporation to do business in Missouri when it appears that such corporation was organized under the laws of a foreign state by citizens and residents of Missouri for the purpose of avoiding the laws of this State.” If it appear that the corporation has complied with the laws of New Jersey and that the business it proposes to transact in this State is not in contravention of any law of this State, these facts do not justify the Secretary of State, under -that statute, to refuse it a license to do business in this State.</p>

— How. W. L. Jarrott, Judge. (1) A defendant in execution, and those acquiring possession under him, can not defeat the recovery in ejectment of a purchaser at a sheriff’s sale by setting up an outstanding title. The purchaser buys the possession, if nothing more, and the defendant must give up the possession; and a person holding under the defendant in the execution or getting possession from him, stands in no better attitude than the defendant in the execution.

Louis County Circuit Court. — 'Hon. Jno. W. McElhinney, Judge. (1) The matters of the power of sale and appointment of the attorney in fact are creatures of the contract, contained in the deed of trust, and not of law, and are to he interpreted and construed as a contract. Reynolds v. Kruff, 144 Mo. 433; Martin v. Paxson, 66 Mo. 260; Cassady v. Wallace, 102 Mo. 575; Powers v. Kueckhoff, 41 Mo. 425; Stewart v. Brown, 112 Mo. 171; Lipscomb v. Ins. Co., 138 Mo. 17.

— Sow. J, W. Peery, Special Judge. (1) The sole consideration of the conveyance from appellant and her husband of the land in controversy was the condition that the town, now city of Trenton, should improve and forever use said lands as a public park,.which should bear the names of the donors.

<p>1. JURISDICTION: Attachment: No Personal Service. In an attachment suit where there is no personal service of process and no appearance of the defendant, the court’s jurisdiction is only in rem, and it can not go beyond its territorial boundary to lay hold of “the thing” to give it jurisdiction. Where by the statute establishing a circuit court at a town in the county other than the county seat, that court at that town is given jurisdiction of all civil suits at law or in equity arising in that part of the county within which lies the land sought to be attached, the circuit court at the county seat can not obtain jurisdiction over the land in an attachment suit brought by publication.</p> <p>2. JUDGMENT: Space Left Blank. Where, in the judgment record book, the style of the case is stated, followed by a blank space and nothing more, there is no judgment in the case.</p> <p>3. PROCESS: Publication: In Paper in County. Where circuit court is held in two places in a county, and suit is brought in one of them to declare void a deed to land lying within the jurisdiction of that court, notice by publication can not be made in a newspaper published in a town lying outside of the jurisdiction of that court, if there is a newspaper published in that town.</p> <p>4. -: -: -: Meaning of Statute. The statute directing that the order of publication, where the defendant can not bd' served with personal process, “shall be published in some newspaper published in the county where suit is instituted, if there be a paper published there,” contemplates a suit in a circuit court having territorial jurisdiction coextensive with the county. But where the act creating a circuit court to be held at a town other than the county seat, divides the county into two districts for the sitting of the court, and gives to the court in that town exclusive jurisdiction of civil suits arising within the territorial limits of the district in which the town is situated, an order of publication must be published in a newspaper printed in that town, if any there be.</p> <p>5. VOID JUDGMENT: Inadequate Remedy at Law. Although a judgment may be void, yet if the defendants have no adequate' remedy at law, since execution has been issued thereunder and the land sold and thereby a cloud created on his title, he may bring a suit in equity to have the judgment, execution, sale and deed declared void.</p> <p>6. -: Cloud on Title: Pleading. The petition must be judged by its statement of facts, and not by the name the pleader gives, it. If the statement of facts makes it a suit to remove a cloud on plaintiffs title) it will be held to be such, although it does not in so many words charge that the decree and the deed it wishes to have set aside, constitute a cloud on plaintiff’s title.</p> <p>7. -: -: Unoccupied Land: Equity. Where the land is in possession of no one and plaintiff’s suit depends on proof aliunde, a court of equity will set aside a void decree by which defeffdant was given title, because in no other way can plaintiff be given adequate relief.</p>

— Row. Wm. L. Jarrott, Judge. (1) Even if Mrs. Baldwin, who was covert, was capable of making the contracts alleged in the petition, which is denied, before plaintiff can recover she must show by proof so clear and forcible as to leave no reasonable doubt in the mind of the chancellor that Mrs. Baldwin, by a contract clear and definite in terms, agreed to give at her death her property to plaintiff, in ■consideration of personal services to be rendered by her to Mrs.…

— Hon. W. K. James, Judge. (1) As water was not needed or used upon August’s premises and as the' service-pipe was left exposed to the elements so that the water was likely to freeze, hurst the pipe, escape and do damage to the neighboring premises, the case is within the principle laid down in Rylands v. Fletcher, 4 Hurl. & C. 263, 3 H. L. 330. The water was likely to do mischief because it was- likely to escape.

<p>Appeal from St. Louis City Circuit Court. — Ho». Warwick Hough, Judge.</p>

<p>NO BILL OF EXCEPTIONS: Affirmance. There being no bill of exceptions and no errors apparent in the record proper, the judgment of nonsuit will be affirmed.</p>

<p>■NO BILL OF EXCEPTIONS: Affirmance. It being admitted that there are no errors on the face of tbe record proper, and there being no bill of exceptions, the judgment will be affirmed.</p>

<p>APPELLATE PRACTICE: Lawsuit: No Instructions or Exceptions. Where an ejectment suit is tried by the court sitting as a jury, and no instructions are ashed or given, and no exceptions taken to any ruling of the court during the trial, there is nothing before the appellate court for review, and the judgment will be affirmed.</p>

— Hon. D. H. Eby, Judge» (1) The action of the trial court in sustaining the-demurrer is sought to he justified on the theory that none of the present plaintiffs were in existence at the date of the death of the testator John C. Carter, Sr., and that therefore the eldest, Margaret E. Carter, who was the only child of Charles E. Carter in esse at that time,, was the only one on whom .the will would take effect.

— Sow. Jas. T. ■ Neville f Judge. (1) It has been expressly held by the court that where there is 'no indorsement upon the writ of summons or in the return to show when it was lodged with the clerk, the law will presume that it was not filed before the return day. Mark v. Hardy, 86 Mo. 233;: Guerney v. Moore, 131 Mo. 664. (2) If the return could have been amended, it is certainly not void in collateral attack. This is the settled doctrine in this. State.

— Hon. A. D. Burnes, Judge. (1) The widow is entitled to the dower in the eighty acres of land, unless: First,«the devise of the homestead requires her to renounce the will and mate her election; second, the direction in the will for the executor to sell the said eighty acres of land, and that the $1,000 legacy shall first be paid to -the widow before the division of the proceeds among the heirs, amounts to an estoppel in pais against the widow.

— Wow. I). D. Fisher, Judge. (1) The sidewalk is a part of a public street, and the city is bound to keep it in repair, and is liable for failure to do so, regardless of the condition of the roadway of the street. “With respect to its sidewalk along its streets, it was defendant’s duty to keep them in a reasonably safe condition for persons who might travel thereon, either by day or night, and if the injury complained of was occasioned by reason of its failure to do so, then…