Volume 184 — Missouri Reports

<p>1. ABATEMENT: Suit Pending. Where defendant by way of an equitable affirmative defense to plaintiff’s ejectment reasserts the same facts she had in a former action by her as plaintiff made the basis of her suit between the same parties, which she had lost, and which was appealed and was then pending undetermined in the proper appellate sourt, it is error to strike out such defense on the ground of suit pending, for the second litigation was not begun by her. .</p> <p>2. RES ADJUDICATA: Appeal: No Supersedeas. A judgment ■from which an appeal is taken without the giving of a supersedeas bond, is, until reversed, res adjuMcata of the matters by it determined, and can be set-up by either party as an estoppel in any subsequent suit between the same parties involving the same cause of action, if the court rendering the judgment had jurisdiction.</p> <p>3. -: Available to Respondent on Appeal: Suit Pending. Where defendant in her answer sets'up an equitable defense to plaintiff’s ejectment, and plaintiff in reply pleads, first, a former suit pending and undetermined involving the same matters set up in that equitable defense, and, second, a former adjudication of the matters therein set up, and the court erroneously decides that the plea of former suit pending is good, but that that of res adjudieaia is insufficient, but renders judgment for plaintiff, from which defendant alone appeals, and all the evidence is brought before the appellate court, it will, the action being one in equity, uphold the judgment on the ground that the plea of res adjudieata, although denied to respondent, was a complete estoppel to a further trial of the equitable defense.</p> <p>4. -: Change of Venue: Common Pleas Court: Jurisdiction By Consent: Collateral Proceeding: Waiver. The statute gave the common pleas court of Cape Girardeau “concurrent original jurisdiction in all civil actions at law with the circuit court,” which means equity suits as well as actions at law, and provided that “all causes in which a change of venue shall be awarded by the circuit court of any other county, to the county of Cape Girardeau, shall be certified and transferred to the circuit court.” And the former suit between the same parties to this, involving the same cause of action, was one in equity,'to enforce specific performance of a parol gift of land, and was brought in another county, the county in which the land lies, and was taken by change of venue to the Cape Girardeau Court of Common Pleas, and the defendants in this cause (plaintiffs in that) and all the other parties appeared in that court and went to trial therein, submitting themselves to its jurisdiction without raising any question of its jurisdiction over the subject-matter. Held, that all of said parties must be held, in ihis case, which is a collateral one, to have waived the question of jurisdiction in that, and can not now be heard to say that that court was without jurisdiction ■ to render judgment therein. That judgment is res adjudieata of the things and matters therein adjudicated, in this subsequent proceeding between the same parties.</p>

— Now. George F. Longan, Judge. (1) Under the evidence of plaintiff she was guilty of such contributory negligence as to bar a recovery. For that reason the trial court should have set aside the verdict. Wheat v. St. Louis, 78 S. W. 790; Cohn v. . Kansas City, 108 Mo. 387; Sindlinger v. Kansas City, 126 Mo. 315. (2) Plaintiff herself testified that she felt the walk tilt but kept going and did not look where she was stepping.

Louis City Circuit Court. — Hon. P. R. Fliicraft, Judge. (1) The evidence discloses a total failure of proof. The petition charges that defendants were changing the grade of Arkansas avenue without any authority to do so. It describes a trespass, whereas the evidence shows that every act of defendants was authorized by ordinance of the city and by permits from the proper city authority. No claim is made in the petition of an injury by a lawful or authorized change of grade.

— Hon. Edward P. Gates, Judge. (1) “The rule appears to be well settled in the United States that a corporation may, unless prohibited by statute, purchase its own stock, or take it in pledge or mortgage.” Cook on Corporations, secs. 312, 314, '282; St. Louis Rawhide Co. v. Hill, 72 Mo. App. 148; Chitland v. Ins. Co., 86 111. 220'; State v. Smith, 48 Vt. 266; Williams v. Savage Mfg. Co., 3 Md.

— Now. James E. Hazell, Judge. (1) The court erred in admitting, over appellant’s objection, the antenuptial agreement, and erred in rendering judgment against appellant excluding her from dower in her deceased husband’s estate. There is no provision made in said agreement which expressly declares the agreement to be in full discharge of dower and unless it is so expressed in said agreement, dower is not barred.

— lion. E. P. Oates, Judge. (1) It lias now become definitely settled in Missouri‘that special charters derived from constitutional authority, like those now existing in St. Louis, Kansas City and St. Joseph, while they confer extensive powers on such cities, with reference to the management of matters of purely local municipal concern, yet in those? matters in which the State at large has admittedly a vital interest (such as, for instance, elections, and the establishment…

<p>For the reasons set forth in State ex rel. Goodnow v. Police Commissioners of Kansas City, reported at page 109 of this volume, the judgments of the circuit court in the above causes are reversed, and the causes dismissed at relators’ costs.</p>

— Row. A. M. Woodson, Judge. (1) The provisions of sec. 9860, article 2, chapter 154, Revised Statutes 1899, apply only to school districts organized under that article, and do not apply to cities of more than fifty thousand and less than three hundred thousand inhabitants, like Kansas Ci'ty and St. Joseph, organized under article 3. State ex rel. v. Henderson, 145 Mo. 329.

— Row. W. B. Teasdale, Judge. (1) The respondent company is subject to and has violated the provisions of the act regulating cooperative companies. Laws 1903, p. 110. (2) Before declaring an act of the Legislature void as conflicting with a constitutional provision the court must have no reasonable doubt on the subject; tire doubt is to be resolved in favor of the law. State v. Able, 65 Mo. 357; Ewing v. Hoblitzelle, 85 Mo. 64; Kelley v. Meeks, 87 Mo. 396.

— Eon. B. J. Casteel, Judge. (1) If the indictment is bad for duplicity, it is because it charges the defendant with having set up and kept a roulette wheel, a crap table and a ehuck-a-luck table, whereon he enticed and permitted divers persons to gamble. It can not be claimed that the offenses are repugnant or that they are defectively set forth.

<p>Error to Buchanan Criminal Court. — No». B. J. Casteel, . Judge.</p>

<p>Error to Buchanan Criminal Court. — How. B;J. Casteel, Judge.</p>

<p>Error to Buchanan Criminal Court. — Hon. B. J. Casteel, Judge.</p>

— Hon. B. J. Casteel, Judge. (1) The indictment charges no offense. The language of the statute makes it clear that it is no offense to set up or keep a table or device which is adapted or devised for the purpose of gaming, unless it is also designed for that purpose.

Louis City Circuit Court. — Row. O’Neill Ryan, Judge. These cases are similar to the cáse of State v. Epstein (186 Mo. 89), submitted at this term. Practically the same points are involved and we deem it unneces-. sary to submit a brief in extenso for the reason that the authorities set out in the Epstein case apply to this. The proceedings were regular and there is no merit in the appeal.

<p>1. SCIRE FACIAS: Appellate Practice: Examination of Record. On appeal from a judgment in a scire facias proceeding to enforce against the surety a recognizance given by an accused indicted for a crime, the appellate court, where there are no errors assigned or brief filed on behalf of the appellant, may properly decline to examine the record, but in this case, as the proceeding is a corollary of a criminal case, the court has examined the record.</p> <p>2. -: Recognizance: Appearance: Insufficient Indictment. A proceeding .to enforce a recognizance against the surety can not be defeated by the fact that the information charging the principal with a crime was insufficient.</p>

<p>Appeal from St. Louis City Circuit' Court. — Hon. O’Neill By an, Judge.</p>

Francois Circuit Court. — Ho». Robert A. Anthony, Judge. . (1) Defendants were charged with the killing of Harry Kowallio. The proof on the part of the State shows that the deceased’s name was Kavolsky, or Henry Kavolsky. Davis v. People, 19 111. 74; Penrod v. People, 69 111. 150; State v. Fay, 65 Mo. 490. (2) The identity of the deceased with the party , named in the indictment must he proved beyond a reasonable doubt. The name must be proved as alleged.

— Sim. Robert A. Anthony, Special Judge. (1) Defendant’s demurrer to the testimony at the close of the State’s case should have been sustained. There was an absolute failure of testimony to show that the alleged conversion of the money was without the consent of the owner. This was an essential and constituent element of the crime of embezzlement. Without this proof there was no crime proven.

— Hon. D. H. Eby, Judge. (1) Defendant’s instruction in the nature of a demurrer to the evidence should have been given. The testimony of the prosecuting witness as to the promise of marriage was not corroborated as required by our statutes. State v. Reeves, 97 Mo. 668; State v. Primm, 98 Mo. 368; State v. Me Caskey, 104 Mo. 604. (2) The court should have given defendant’s instruction numbered 1. State v. Reeves, 97 Mo. 668.

— How. Henry G. Riley, Judge. (1) The information charges an assault upon the body of one Charles Clark and the wounding and killing of Charley Clark. The court cannot presume that Charles Clark and Charley Clark are one and the same person. It is possible, and more than probable, among colored people, for these two names to represent two different parties.

— Now. A. D. Burnes, Special Judge. (1) The court erred in refusing to sustain defendant’s demurrer to the evidence offered at the close of all testimony. The whole of the witness Marshall’s testimony is uncertain, unreliable, and too unstablé and unsafe to base a conviction upon.

— Row. Henry C. Riley, Judge. (1) There is no evidence in the cause to justify the giving of an instruction for murder in the second degree, and the court erred in instructing the jury upon that grade of homicide. (2) Instruction 2 is erroneous in that it fails to tell the jury that the striking with the club must have been upon a vital part, in order to raise the presumption that defendant intended the natural and probable consequences of the striking.

# Appeal from Jackson Circuit Court. — Hon. Wm. B. Teas dale, Judge. (1) (a) An imposition practiced on the court, for the purpose of obtaining jurisdiction as to persons is ineffective and will not be countenanced. Capital City Bank v. Knox, 47 Mo. 333; Graham v. Ringo, 67' Mo. 324; Byler v. Jones, 79 Mo. 261; Christian v. Williams, 111 Mo. 429. (b) Assignment does not carry with it title to property which assignor has previously transferred in fraud of creditors.

— Row. Jno. P. Butler,, ■ Judge. (1) A deed which conveys real estate to a grantee-therein named and to the heirs of his or her body, at. common law created an estate in fee tail, which, under the statute of this State, is converted into an estate for life, in the grantee named, with remainder in fee simple-to his or her children.

<p>CONDEMNATION: Corporation: RighT To Jury Trial. Where the real estate of an incorporated company, such as a railroad corporation, is affected by a condemnation proceeding, and such company demands a jury to try the cause, that right cannot, under the Missouri Constitution^ be denied.</p>

— No». P. C. Stepp, Judge. (1) Where a case is tried by the court sitting as a jury, and there is evidence given by both parties on the issues, it is error to give a peremptory instruction that upon the evidence the plaintiff is entitled to recover. DeG-raw v. Prior, 53 Mo. 313; Butler Co. v. Bant, 143 Mo. 23. In determining’ the. propriety of a peremptory instruction it is immaterial whether the case is tried by the court or by a jury. Lumber Co. v. Christophel, 62 Mo.

Cliarles Circuit Court. — Hoto. E. M. Hughes, Judge. (1) The judgment or construction of the will by the circuit court is against the true intent and meaning, of the testator as manifested by the will; it was the .duty of the court to carry out testator’s intention.

Charles Circuit Court. — Now. E. M. Hughes, Judge. (1) Section 2918, Revised Statutes 1899, was not enacted for the purpose of legalizing void marriages, but for the purpose-, plainly expressed, of making legitimate the children or issue of illegal or void marriages.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. A tax deed is not required to show on its face for what delinquent taxes the land was sold, the amount of taxes and the years for which the taxes were due. Allen y. McCabe, 93 Mo? 138. No particular form of deed is required under tax sales and a common law conveyance stating the power under which the sheriff acts is sufficient. R. S. 1899, sec. 9305; Allen v. McCabe, 93 Mo. 138; State ex rel.. v. Mantz, 62 Mo-. 258.

Court of Common Pleas. —Hon. John A. Snider, Judge. (1) Tlie evidence establishes conclusively that the-closest confidential relations existed between plaintiff andi defendant, and that sbe relied upon Mm implicitly. (2) The gain in the transaction was all on tbe defendant’s side.

Charles Circuit Court. — Hon. E. M. Hughes, Judge. (1) It is the settled law in this State that a party ■claiming the legal title to land, and being out of possession, cannot invoke equitable jurisdiction to remove ■a cloud from sucb title. Graves v. Ewart, 99 Mo. 13; McRee v. Gardner, 131 Mo. 599; Davis v. Sloan, 95 Mo. •552; Janney v. Spedden, 38 Mo. 395; Odie v. Odie, 73 Mo. 289; Clark v. Ins. Co., 52 Mo. 272; Keane v. Kyne, ■66 Mo. 216; Dyer v. Krackauer, 14 Mo.

<p>Appeal from St. Charles Circuit Court. — JEfcm. E. M. Hughes, Judge.</p>

— Row. Nat. M. Shelton, Judge. (1) Asa matter of fact every statutory and jurisdictional requirement was stricly complied with by the petitioners in this case throughout the entire proceedings. The only omission-.was made by the county clerk in his minutes. R.S. 1899, secs. 9414, 9415, 9416, 9417, 9418.

— Hon. E. M. Hughes, Judge. (.1) A judgment in ejectment is no bar to a second action for the same property and between the same parties whether the titles and defenses in both actions be the same or not. Avery v. Fitzgerald, 94 Mo. 207; St. Louis v. Lumber Co., 98 Mo. 613; Sutton v. Dameron, 100 Mo. 141; Swope v. Weller, 119 Mo. 556; Speed v. Terminal Co., 163 Mo. 111.

<p>Appeal from Lincoln Circuit Court. — Hón. E. M. Hughes, Judge.</p>

— Hon. John A. Hockaday, Judge. (1) A bill to set aside and cancel a deed conveying land is not a suit affecting the title to real estate within the meaning of the statute' requiring such suits to- be instituted in the county where the land lies. 18 Ency. PL and Pr., 790; Johnston v. Wadsworth, 24 Ore. 497; Olney v. Eaton, 66 Mo. 567; State ex rel. v. Zaehritz, 166 Mo. 313. Judicial rescission is an exclusively equitable remedy by bill. 18 Ency.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) Upon the uncontradicted facts recited in the. pleadings and respondent’s evidence, respondent could not.recover, and the bill should.have been dismissed; he failed to offer to do any equity or contribute one cent to the making of the plant useful or valuable, or to pay its debts. The court will, in cases like this, examine the evidence. Morley v. Harrah, 66 S. W. 942; Drosten v. Mueller, 103 Mo. 624.

<p>CORPORATION: Transfer of. Properties to Stockholder's: Distribution of Proceeds: Costs of Appeal. Where the transfer of the properties of a corporation to its stockholders in payment of money honestly loaned to the company by them and in consideration of their paying its other debts is by this court held to be valid, in a suit by one of the stockholders to have that trans* fer set aside, which was done by the trial court, and the property was subsequently sold while a motion for a new trial was pending, an appeal by such -stockholder from an order of distribution of the moneys obtained by such subsequent sale, will he dismissed at the cost of the appellant, since the judgment of this court setting aside the judgment of the trial court necessarily set aside the order of sale and distribution.</p>

Louis County Circuit Court.— Hon. John W. McElhmney, Judge. A will speaks not from the time of its execution, but from the date of the testator’s death. . It therefore passes title to property acquired after its execution, unless, from the terms of the will itself, by fair construetion, it indicates otherwise. Liggat v. Hart, 23 Mo. 127; Webb v. Archibald, 128 Mo. 299 ; Haley v. Grate-wood, 74 Tex. 281; Strevens v. Bagley, 8 Ir. Law Rep.

Transferred from St. Louis Court of Appeals. The only question in the case is: Does a justice of the peace-, living in a county where neither the plaintiff nor defendant resides, and where the defendant cannot he found, have jurisdiction to render a judgment binding on anybody? The two sections of the statute must be read together and made to harmonize one with the other, if possible.

Mandamus. (1) It was not only the duty of respondent to sign the hill of exceptions tendered him, if the same was found to be correct, but it was equally his duty, if he thought the same was in any way imperfect, to correct-it and then sign it. Page v. Clopton, 30 Gratt.' 415; City v. Ballard, 126 Cal. 677; Swartz v. Nash, 45 Kan. 341. Respondent could not refuse to sign the bill, and refuse also to permit it to be corrected after he had indicated wherein it was incorrect.

— How. W. W. Graves, Judge. (1) The law questions involved in the merits of this case were settled on the former appeal (161 Mo. 673). Conroy v. Iron Works, 75 Mo. 641; Band v. Taylor, 62 Mo. 338; Overall v. Ellis, 38 Mo. 209; Hombs v. Corbin, 34 Mo. App. 397. (2) The pivotal question is one of fact as to whether Ella G. Smoot was served with process so as to be charged with knowledge of the suit when pending.

Prohibition. (1) Relator contends that the circuit court had no jurisdiction of the subject-matter of the election contest wherein William Buchholz was contestant and Hugh C. Brady contestee. Held: The right to a change of venue is purely statutory and does not exist unless given by statute. State ex rel. v. Wofford, 119- Mo. 408; Cole v. Cole, 89 Mo. App. 233.

Prohibition. (1) There is no power conferred on the judges of the Supreme Court acting singly or out of term to issue the powerful prerogative writ of prohibition. Section 3 of article 6 of the Missouri Constitution confers the power on the Supreme Court to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs.

St. Louis City Circuit Court. — No». John A. Talty, Judge. (1) The trust established by defendant’s answer and evidence is clearly an express trust. Mullock v. Mullock, 156 Mo. 431; Hillman v. Allen, 145 Mo. 638; 27 Am. and Eng. Ency. of Law (1 Ed.), 6; Bispham, Equity, secs. 63-65. (2) An express trust relating to realty can not be established by oral evidence, and defendant can not circumvent the law, by endeavoring to convert it into a resulting trust.

Transferred from St. Louis Court of Appeals. (1) A probate court has no jurisdiction to adjudicate and allow claims of the husband against his'deceased wife’s estate upon contracts made during coverture. Lindsay v. Archibald, 65 Mo. App. 120; Davis v. Smith, 75 Mo. 227; Boston v. Murray, 94 Mo. 181. (2) A husband.contracting with his wife has no personal cause of action against her which would survive against her representative. Bank v. McMenamy, Admr., 35 Mo.

<p>Transferred from St. Lonis Court of Appeals.</p>

Louis City Circuit Court. — Row. Jacob Klein, Judge. (1) The doctrine announced in the opinion in the case of Holwerson v. Railroad, 157 Mo. 216, has been repudiated. Morgan v. Railroad, 159 Mo. 262. (2) Plaintiff was entitled to go to the jury. Weller v. Railroad, 164 Mo. 180.

Transferred from St. Louis Court of Appeals. . (1) Respondent’s instructions 1 and 3 required the jury, before they could find for appellant, to find that the paper and straw, the refuse matter, was of a character naturally calculated to frighten horses of ordinary gentleness. This required a finding that the refpse matter, no difference where located, must be of such a character in itself. This was not the issue.