Volume 182 — Missouri Reports

— Hon. W. A, Jarrotb, Judge. (1) Defendant had the right to construct the sewer-in question so that it would discharge itself into the stream naturally draining the territory covered hy the sewer districts. Mining Co. v. Joplin. 124 Mo. 136.. (2) The only restriction upon this right is that defendant must not discharge its sewer into such stream, if plaintiff’s lands will he injured thereby, without compensating him for damages he may suffer.

Louis City Circuit Court. — Hon. O’Neill Rya/n, Judge. Defendants’ demurrer to the paper entitled an information should have been sustained. Said paper is not verified; and recites that it is made solely and only on the official oath of the circuit attorney. Laws 1901, p. 138; R. S. 1899, sees. 2477, 2479; State v. Jones, 168 Mo. 400; State v. Bonner, 178 Mo. 424; State v. Hayward, 83 Mo. 299.

<p>UNVERIFIED INFORMATION. Wliere the information was not verified hy oath or supported hy affidavit, and a motion to quash on that ground was filed before trial, and overruled, the judgment of conviction will be reversed, and the cause remanded. for new trial.</p>

— How. Argus Cox, Judge. (1) The action of the court in overruling appellant’s application for a continuance was prejudicial to appellant. Due diligence had been shown to procure the attendance of the absent witnesses, Clinton, Johnson and Nellie Lesh, and all the statutory requirements were met by the affidavit in support of the application and the evidence sought to be obtained was competent and appellant should have been allowed an opportunity to obtain it.

— Hon. Henry C. Pepper, Judge: (1) The defendants should have been arraigned and made to plead to the specific charge on which they were convicted. The record shows that the defendants, were arraigned, both in Jasper and Lawrence counties, upon the sole charge of “obtaining money under false pretenses.” State v. Barnes, 59 Mo. 154; State v. Saunders, 53 Mo. 235; 2 Enc. PI. and Pr., 762; Gaither v. State, 21 Tex. App. 527.

— How. W. N. Evans, Judge. (1) Defendant was compelled to admit that Owens did not have a knife in his hand, bnt that he had a rock. He did not testify that Owens attempted to strike him with a rock. Indeed, the undisputed evidence shows that the defendant killed Owens without excuse, and. there was no self-defense in this case.

Louis City Circuit Court. — How. O’Neill By an, Judge. (1) The demurrer offered by the defense at the close of the State’s case should have been sustained, (a) Defendant did not obtain goods on credit, but paid for them part in cash and part in notes, secured by chattel mortgage on the goods bought.

— Ho». Jos. D. Perkins, Judge. (1) The application for a continuance was properly overruled. It does not comply with the statute in that it does not show that due diligence was used to obtain the testimony of the witnesses. It does not show that defendant believed to be true the statements which he alleged he could prove by the witnesses; it does not show that he is unable to prove the facts alleged therein by any other witness whose testimony could he as readily procured.

- — How. J. L. Fort, Judge. Before the State can ask for a conviction or even desire the conviction of one of her citizens charged with crime, it must be established beyond a reasonable doubt that every material allegation in the information has been proven. A failure on the part of the State to do this entitles the defendant to an acquittal.

— No». Jno. W. Wofford, Judge. (1) Can a more horrible insane condition of mind be imagined than that of a person so affected by fright as to be unconscious of his own acts or state? So affected as to be incapable of' deliberation? Each and every author on psychology, on mental diseases, and on medical jurisprudence recognizes and affirms, and the many horrible catastrophes attest, that “fright” is a most efficient cause of an insane condition of mind.

Louis City Circuit Court.— Eon. O’Neill By an, Judge. Held: that the power of sale vested in her carried with it power to convey the fee. No one of these cases is identical with the case at bar. In no one of them is found an express life estate, created by apt and technical words, with remainder over to a stranger, such as is found in the case at bar.

— Rom David R. Eby, Judge. The lease from John Dixon to B. F. Finnegan, read in evidence, together with the proof that the said Finnegan, either prior to or at the date of the execution of said lease, entered into possession of one hundred and sixty acres of the land described in the petition, and continued in possession thereof during the lifetime of said Dixon, constitutes a good and sufficient lease of said lands to the defendant, B. F. Finnegan.

— Hon. Jas. E. Hasell} Judge. (1) It is tlie legal title only that is recognized as the ground of action, and a -plaintiff must recover in ejectment, if at all, on the strength of that title, and on plaintiffs’ own showing an outstanding title to the land in suit is found in a party other than themselves. King-man & Co. v. Sievers, 143 Mo. 519; Clay v. Mayr, 144 Mo. 376; Hunt v. Searcy, 167 Mo. 158.

— How. D. H. Eby, Judge. (1) A court of equity has, at any time, inherent power to grant a new trial, in cases where a judgment has been procured by fraud. 1 High on Injunction (3' Ed.), sec. 190, p. 143; 1 Story, Equity Jurisprudence (13 Ed.), sec. 192, p. 205; 2 Story, Equity Jurisprudence (13 Ed.), sec. 887, pp. 197, 198; 3 Pomeroy’s Equity Jurisprudence (13 Ed.), see. 1364, p. 2103; 2 Daniel’s Chancery Practice (5 Ed.), 1624; Miles v. Jones, 28 Mo. 87; Haris v. Terrell,…

— Eon. Jno. P. Butler, Judge. The demurrer to plaintiff’s petition should have been sustained. It alleges that Wheeler agreed with Thomas Darrell that he would buy the land in question from Edward Darrell. Edward Darrell did not agree to sell to Wheeler or to any one, and was not bound by the contract in any manner, to do anything.

— Eon. Jno. P. Butter, Judge. (1) The body of land to which plaintiff showed paper title was not all washed away by the Missouri river, there being a small portion of the original land left, together with a large amount of accretions that had formed before the river cut away the greater part of Saline Point.

- — No». F. B. Bearing, Special Judge. The deeds to Wolfenden and respondents were not constructive notice to Williams; in fact, the deed to ■respondents is not proven: First. The acknowledgment is not according to statute. E. S. 1899, sec. 908. Second. There is no'certificate to the acknowledgment recognized by statute. E. S. 1899, sec. 911. Third. Eespondents’ deed was not entitled to record because not proven or acknowledged. E. S. 1899, secs. 823, 9062. Fourth.

St. Louis City Circuit Court. — How. Selden P. Spencer, Judge. In this case we have a property owner praying for the improvement, standing still without objection until the work has been completed, receiving its benefits, promising to pay for same and then questioning the legality of the action of the proper officers.

— Row. D. R. Eby, Judge. (1) The duty to ascertain and make effective the “true intent and meaning” of testatrix has been made in this State the subject of positive statutory requirement. R. S. 1899, sec. 4650. The explanatory clause whereby the entire intent of testatrix is expressed will be adopted by the court as conclusively showing her intention, and will be followed in determining the legal effect of the instrument. Small v. Field, 102 Mo. 128.

<p>The judgment in this ease is affirmed on the authority of Miller v. Ensminger, ante, page 195.</p>

— Hon. Jas. L. Fort, Judge. (1) If a deed expresses a consideration, the grantor, is estopped to deny that the title has passed, whether the consideration is paid or not, and no use can be raised in him. Bobb v. Bobb, 7 Mo. App. 501. (2) Inadequacy of consideration will not vitiate a conveyanee which is otherwise good. Novelty Mfg. Co. v. Pratt, 21 Mo. App. 171. And it is no objection to the validity of the deed that the consideration expressed is only one dollar.

— No». A. D. Bumes, Judge. (1) The' case admits that the justice of Nodaway township had jurisdiction of the suits against plaintiff, as that township adjoined the one in which plaintiff resided. The fact that the summons (directed to the Nod-away constable) was served in Rochester township signifies nothing. The summons could have been directed to the constable of Nodaway or of Rochester, and served in any township of the county. Friar v. McGuire, 70 Mo.

Transferred from Kansas City Court of Appeals. (1) The motion to set aside the default is defective. - (a) It should state that defendant has been advised by counsel that he has a meritorious defense. An affidavit on a motion to set aside a judgment by default, stating that defendant was advised, etc., without stating that he was advised by counsel, is not sufficient. Lecompte v. Wash, 4 Mo. 557; 1 Enc. PI. and Pr., 360.

— Hon. Jas. E. Hazell, Judge. (1) The wife could not appoint her husband, or any one else, her agent to act for her in relation to lands held by her in fee simple. Nor could the husband charge, bind or convey the lands in which she has no separate estate. A married woman can not appoint an agent as to property not held by her as her separate equitable estate. Macfarlane v. Heim, 127 Mo. 328.

Louis City Circuit Court. — Eon. P. B. Filter aft, Judge. (1) The first defense seeks to show the straight legal or paper title in defendants. It submits that they hold the .legal title .by an unbroken chain from the common source of title. In ejectment the legal title must rest with the plaintiff. Schanewerk v. Hoberecht, 117 Mo. 22; Hume v. Hopkins, 140 Mo. 65; Keat v. Baker, 141 Mo. 180.

Quo Warranto. (1) In its popular sense, the term “railroad” includes all that are involved in the business of moving passengers and freight over a physical structure. Cent. Mo. Co. v. Railroad, 89 Fed. 560; Railroad v. Railroad, 46 N. J. L. 289; Railroad v. Railroad, 123 111. 594. The spirit and object of the constitutional inhibition must be regarded. It will not do to juggle with its technical meanihg. Railroad v. Jarvis, 15 Am. & Eng. R. R. Cas. (N. S.) 459.

Louis City Circuit Court. — Ho». S. P. Spencer, Judge. (1) The bill does riot state facts that would entitle plaintiff to any equitable relief. ■ A court of equity has no jurisdiction to set aside sales of personal property made under a pledge, unless some such equitable ground as injunction, specific transfer, discovery or accounting is laid. No such ground is laid in the bill. 2 Story’s Eq.

<p>APPELLATE JURISDICTION: School District a Party. A school district is not a political subdivision of the State within the meaning of the constitutional amendment giving the Supreme Court jurisdiction of an appeal in a case in which a political, subdivision of the State is a party.</p>

Prohibition. (1) In every well-organized government there are three distinct, co-eqnal and co-ordinate departments— legislative, executive and judicial. The Missouri Constitution makes careful provision for the complete separation of these three departments and by a system of checks and balances secures their equality in power.

Quo Warranto. (1) It was entirely competent for the General Assembly to provide an additional judge for the circuit court of Jasper county, as is done by the act of March 25, 1901. Laws 1901, pp. 120-1. The Constitution expressly confers this power. See. 28, art. 6, Const. (2) The act creating this office is not a special law, and does not come within the inhibition of sections 53 and 54 of article 6 of the Constitution.

— Hon. W. L. Jarrott, Judge. (1) Criminal and penál statutes are to he strictly construed in all parts which are against defendants, hut liberally construed in those which are in their favor. State v. Bryant, 90 Mo. 537; State v. Gritzner, 134 Mo. 527; State v. Howard, 137 Mo. 297State v. McCance, 110 Mo. 406; State v. McLain, 49 Mo. App. 400.

— Now. W. L. Jarroit, Judge. (1) Criminal and penal statutes are to he strictly construed in all parts which are against defendants, hut liberally construed in those which are in their favor. State v. Bryant, 90 Mo. 535; State v. G-ritzner, 134 Mo. 512;-State v. Howard, 137 Mo. 289; State v. McCance, 110 Mo. 398; State v. McLain, 49 Mo. App. 400.

Louis City Circuit Court. — No», O’Neill By cm, Judge. (1) The court erred in refusing to permit defendant to offer evidence on his application for a change of venue and in denying said application. Held: ‘1 An application for a change of venue in a criminal case comes too late when the case is called for trial, no previous notice having been given of the proposed application.” State v. Caudle, 174 Mo. 388.

<p>The judgment in this case is affirmed on the authority of State v. Lehman, ante, page 424.</p>

•Appeal from St. Louis City Circuit Court . — Eon. O’Neill Ryan, Judge.

— Ro». Wm. B. Teasdale, Judge. (1) The court erred in admitting incompetent evidence offered by the plaintiff, over the objections of the defendant, and in refusing to admit competent evidence offered by defendant, (a) The court erred in admitting incompetent evidence, namely: That of an alleged expert, as to distance in which the train could be. stopped. Maher v. Railroad, 64 Mo. 276; Mammerberg v. Railroad, 62 Mo.

— Bow. Argus Coco, Judge. (1) As defendant Sarah C. Scroggins was not notified of her homestead right by the sheriff and the same was not set apart to her that she might designate the part to be sold under the Bechow execution, if it was subject thereto, the sale and deedmade under said execution was invalid and conveyed no title. Stinson v. Call, 163 Mo. 320; Creech v. Childers, 156 Mo. 342.

— How. Wm. B. Teasdale, Judge. (1) The petition does not state facts sufficient to constitute a cause of action, (a) It does not show legal capacity on the part of the plaintiff to maintain this action. Caster v. Chase, 160 Mo. 424; Porter v. Railroad, 60 Mo. 160; Jones v. Steele, 36 Mo. 326; Higgins v. Railroad, 36 Mo. 431. (h) It does not show that the alleged failure to ring the bell, nor excessive speed, was the proximate cause of the injury. Molyneux v. Railroad, 81 Mo.

— How. John A. Hochaday, Judge. ' (1) At the close of plaintiff’s. case the defendant offered the following demurrer: ‘ ‘ The court instructs the jury that under the law and the evidence your verdict must he for the defendant,” which was refused. I earnestly contend that the same should have been given.

Louis City Circuit Court. — Row. R. D. Wood, 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 the evidence in the case, because the plaintiff wholly failed to establish the case alleged by her amended petition. Plefka v. Knapp-Stout Co., 145 Mo. 321; Blanton v; Dold, 109 Mo. 64; Benedek v. Pettis, 4 Am.Neg. Rep. 487.

— lion. W. L. Jarrott, Judge. (1) The court should have directed a verdict in favor of defendant upon the admitted facts in regard to deceased’s contributory negligence.

Louis City Circuit Court. — Hon. Selden P. Spencer., Judge. (1) The devise to the executors of the real estate, subject to the life estate, was not to them personally, but, to them as executors. The estate in trust was, therefore, annexed to the office of executor, and terminated therewith. Littleton v. Addington, 59 Mo. 275; Francisco v. Winfield, 161 Mo. 512; Garesche v. Ins. Co., 116 Mo. 136.

— No». E. P. Gates, Judge. (1) There is no satisfactory proof (nor indeed any proof), either of a contract “to adopt” (or of an actual adoption), or of a contract “to give a child share in estate.” Neither the “family” witnesses or the corroborative witnesses (if they may be so called or designated), make up, either separately or in combination, a coherent, consecutive, probable story.

Louis City Circuit Court. — How. Warwick Hough, Judge. (1) The court erred in giving the fourth instruction for plaintiff. It was nowhere submitted to the jury by any instruction in this case to find that the act of the conductor was wantonly done, or that it was for the purpose of oppressing the plaintiff, or in disregard of his rights.

— Hon. E. M. Hughes, Judge. (1) The service upon the two corporations, to-wit: The Wabash Railroad Company and the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, was a nullity. R. S. 1899, sec. 570; Cloud v. Pierce City, 86 Mo. 363; Sykes v. Railroad, 77 S. W. 723; St. Clair v. Cox, 106 U. S. 350, 27 L. Ed. 225; Railroad v. Pinkney, 149 U. S. 194, 37 L. Ed. 699; New Mineral River Co. v. Seeley, 120 Fed. 200; Ins.