Volume 193 — Missouri Reports

Jackson Circuit Court. — No». James Gibson, Judge. (1) Plaintiff, in Ms testimony, swore and claimed that at the time he was injured he was in the act of using the elevator, which was, therefore, if plaintiff’s story he accepted, in actual use at the time of the alleged accident, and defendant was not, therefore, guilty of any negligence with respect, thereto at the time and in the manner claimed hy plaintiff, and he cannot recover in this action.

Habeas Corpus. (1) Section 2358 is unconstitutional (Const. U. S. amend. 14, sec. 1; Const. Mo. art. 2, sec. 30), because it denounces and punishes as a crime the doing of an act which it is not within the power of the Legislature to so denounce and punish, and it thereby deprives petitioner of his liberty without due process of law. This conclusion results from a consideration of the following propositions, viz.: (a).

Prohibition. (1) The circuit court of Johnson county did not acquire jurisdiction over Jackson by service of summons issued to and served in the city of St. Louis. Although Suddath was named as a defendant, there was no joint liability by him and Jackson. In such case, section 562, Revised Statutes, relied on, does not apply. Graham v. Ringo, 67 Mo. 324; Haseltine v.' Messmore, 184 Mo. 314.

— Now. E. J. Broaddus, Judge. (1) Neither Furlong nor any one acting under him had any authority to make arrests or cause arrests to he made; and the defendant’s demurrer to the evidence should therefore have been sustained. Fire Ass’n v. Fleming, 78 Ga. 734; Pinkerton v. Gilbert, 22 111. App. 568; Railroad v. Epperson, 26 111. App. 79; Travis v. Ins.

— Hon. Jas T. Ne-ville, Judge. (1) The debts of the estate must be paid primarily out of the residuary personal estate. If this prove insufficient, then the entire personal estate is liable^ — general legacies first contributing ratably and then specific legacies and, if necessary, next residuary real estate and next real estate specifically devised; for, under our statutes debts cannot be defeated by the provisions of a will.

— Hon. James Gibson, Judge. (1) This is a partition suit and McEvoy being in the undisputed ppssession of that part of the land described in his answer, claiming the same adversely to all the other parties to the suit, the question of his title could not be tried in this case.

Appeal form St. Louis City Circuit Court. — Row. Franklin Ferriss, Judge.

— Hon. Henry C. Riley, Judge. There was no sufficient service of summons on Alex. Nunn. No affidavit, as required hy sections 582 and 575, . Revised Statutes 1899, was ever filed. Therefore, there was no authority for issuing the summons to the Illinois sheriff, and the service of the same on him, and all subsequent proceedings in the case, as to him, are nullities.

Louis City Circuit Court.— Eon. Warivick Eough, Judge. (1) This being a suit for partition, and the answer of defendant having pleaded facts entitling her to equitable relief, this action is an equitable one and this court will review the whole record as if the suit had originated in this court. Sheridan v. Nation, 159 Mo. 27; Railroad v. Brandon, 81 Mo. App. 1; Robertson v. Shepherd, 165 Mo. 360; Caldwell v. Wright, 88 Mo. App. 604; Roth v. Wire Co., 94 Mo. App. 236.

— Hon. Henry G. Riley, Judge. (1) Defendant failed to show adverse possession for even ten years. R. S. 1899, see. 650; Wilson v. Purl, 133 Mo. 367; Ivy v. Yancy, 129 Mo. 501; Adkins v. Tomlinson, 121 Mo. 487. (2) The court erred in refusing to give plaintiff’s third instruction, asked.

— Jas. E. • ■ Slovery Judge. (1) The transactions alleged to have occurred between Thomas H. Mastín and Julia Mastín and respondents in May, 1893, constituted under the circumstances alleged an equitable mortgage to respondents upon the real estate described in the petition.. 1 Jones on Mortgages (3 Ed.), sec. 248; Wilson v. Drumrite, 21 Mo. 325; Tibeau v. Tibeau, 22 Mo. 77; Cobb v. Day, 106 Mo. 278; Book v. .Beasly, 138 Mo. 455; McDonald v. Hoover, 142 Mo. 495; Bogk v.…

— Hon. J. W. Alexander, Judge. (1) In this cause we have to deal with the most sacred of confidential relations, those between husband and wife. “It has always been found necessary to examine zealously into the transactions whereby the husband gets tbe advantage of the wife.” “The doctrine to be examined arises from the very conception and existence of a fiduciary relation.

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. (1) .The information is defective in that is fails to allege the ownership of the goods in charging the burglary. 2 Bishop, Crim. Pro. (2 Ed.), sec. 129. (2) The information must contain an allegation of every fact which is legally essential to the punishment to be inflicted. 1 Bishop, Crim. Pro., sec. 81; State v. Hayward, 83 Mo. 299; State v. Buster, 90 Mo. 514.

- — Eon. A. D. Bumes, Judge. (1) The small notes upon which pretended judgments were rendered were in fact the obligations of Mary E. Martin. Plaintiff was but a surety. The estate of the deceased principal was solvent. The original holders who knew the facts would have presented them for payment.

Louis City Circuit Court. — How. Robert M. Foster, Judge. The question to he answed is whether or not, under the circumstances in this case, the State has a right to appeal the prosecution herein by information.

— Ho#. L. B. Wood-side, Judge. (1) The information, which was properly verified, is sufficient in form and substance. It follows the language of the statute, which describes the offense. R. S. 1899, sec. 1823. (2) The instructions fully and fairly presented the law to the jury, and were favorable to defendant. But this court cannot consider them, as no objections were made and no exceptions were saved to the giving of instructions at the time.

Lonis City Circuit Court. — No®. Robert M. Foster, Judge. (1) The information, which was duly verified by the assistant circuit attorney, is sufficient in form and substance. State v. Jones, 134 Mo. 259. (2) The verdict is in the approved form. By it the jury found the defendant guilty of murder in the second degree, and his punishment was assessed at twenty-five years ’ imprisonment in the penitentiary.

<p>APPEAL: No Bill of Exceptions. Where defendant files no bill of exceptions, there is nothing before the appellate court but the record proper, and if that is free from error, the judgment will be affirmed'.</p>

— Ron. Jas. D. Barnett, judge. (1) The amended information does not state facts sufficient to advise appellant of the offense with which he is charged, and does'not state facts sufficient to constitute a public offense, (a) It fails to allege ownership of the chicken-house to be in anyone at the time of the alleged offense. 1 Bish. New Crim. Proc., secs. 408, 410, 4Í2; State v. Seward, 42 Mo. 206; State v. Broeder, 90 Mo. App. 156.

Louis County Circuit Court. — Hon John W. McElhinney, Judge. (1) Under the law plaintiff’s accretions could never extend beyond the section and range lines at his southeast corner. Shelton v. Maupin, 16 Mo. 124. (2) Where the shore line of two or more bodies of land, divided by a water course, receive accretions until they come together, the line of contact will be the dividing line. Buse v. Russell, 86 Mo. 209.

— Ho». W. N. Evans, Judge. (1) The deed of trust read in evidence vested the legal title to the premises in question in the trustee therein named, and also vested in said trustee the power to sell. And such power was coupled with an interest in the land itself. And the trustee’s deed read in evidence passed the legal title to the grantor named therein.

— Hon. Henry M. Ramey, Judge. (1) The court erred in giving instruction 2 on behalf of defendant.

— IIon W. N. Evans, Judge. (1) It was error to permit defendant by .parol or other evidence to attempt to show the patent issued to plaintiff by Butler county was without consideration. ‘ ‘ The general rule in this State is that the consideration clause of a deed is open to explanation; that is to say, that while it is not allowable to show no consideration for the purpose of defeating the operation of the deed as a grant, the true consideration may he shown.” Edwards v.…

— Hon. J. H. Slover, Judge. (1) It is not necessary to join all persons owning tracts of land along the line of the proposed railroad in one county or circuit, not settled with, as parties defendant in one petition. R. S. 1899, sec. 1267; Railroad v. Railroad, 129 Mo. 70; R. S. 1899, sec. 1161. (2) Sections 1264, .1266 and 1267, Revised Statutes 1899, should he read and construed together.

— No». J. H. Slover, Judge. (1) The conveyance by Mann to his wife, January 27, 1896, of the north half of lot 20, Phillips’ Place, and lots 1 to 4, block 2, Mt. Evanston, was admittedly voluntary, and without consideration, and was void as to existing creditors. Pawly v. Yogel, 42 Mo. 301; Bank v. Overall, 16 Mo. App. 515, 90 Mo. 410; Loehr v. Murphy, 45 Mo.

<p>Appeal from Jackson Circuit Court. — Row. Andrew F. Evans, Judge.</p> <p>Transferred to Kansas City Court of Appeals.</p>

Louis City Circuit Court. — Hon. Jus. 11. Kinealy, Judge. (1) The only purpose for which the statute authorizes a curator to mortgage the real estate of his ward under the direction of the probate court is the education, support and maintenance of the minor. R. S. ■1899, sec. 3504.

— Ho». Hugh Dabbs, Judge. (1) The answer of defendant alleged, and the undisputed proof conclusively established, that defendant was induced to sign the subscription for stock by fraudulent misrepresentations as to the leases and property which belonged to the company, this suit being by the pretended corporation and the rights of no creditors being involved.

— 3on. W. L. Jarrott, Judge. (1) The demurrer to the petition should have been sustained. As to who is the plaintiff must be determined by the caption and the allegations in the petition taken together. Adams v. Cowles, 95 Mo. 507 j Charley v. Kelley, 120 Mo. 143; R. S. 1890, sec. 539; Pattison’s Mo. Code Pleading, secs. 246, 250: In equity, the misjoinder of one as a party plaintiff could be reached by a general demurrer to the whole bill for want of equity.

— lío». E. M. Hughes, Judge. Besides his title, as left unaffected by the action of the Missouri river, plaintiff showed himself the owner of title through valid purchase from the county court. Laws 1895, p. 207; Laws 1899, pp. 276, 277, 278.

Louis City Circuit Court. — Eon. II. D. Wood, Judge. (1) There is no evidence tending to prove that the absence of a brake was the proximate cause of' Seeger’s injury. The circumstances of the accident demonstrate that the injury was due to other causes than defendant’s alleged negligence. Goranssen v. Mfg. Co., 186 Mo. 307; Warner v. Railroad, 178 Mo. 134; Plefka v. Co., 145 Mo. 321; Sexton v. Railroad, 98 Mo. App. 501; Wray v. Co., 68 Mo. App. 390.

<p>1. STREET CAR: Jumping Track: Defective Rail. Where there was substantial evidence tending to show that the proximate cause of the accident, in which a street car jumped the track and injured the plaintiff conductor, was a defective rail, the court will not set aside a verdict for him, although the evidence also shows that the. car, notwithstanding the defective rail, would not have jumped the track had care been taken to sufficiently slow down the speed.</p> <p>2. -: -: -: Excessive Speed: Motorman’s Concurring Negligence. A master is liable to a servant injured by the master’s negligence, even though the negligence of a fellow-servant contributed to the result. Hence, if the motorman of the street car which jumped the track and injured the conductor was negligent in running the car too fast at the curve where the accident occurred, yet if that negligence united with the master’s negligence in permitting a defective rail at the point, to produce the accident, the master is liable.</p> <p>3. -: -L; -; -; imputed to Conductor. It is not the duty of a street ear conductor to direct, the speed of the car at every point. The negligence of the motorman in running the car too fast at a curve, in this case, cannot he imputed to the conductor.</p> <p>4. INSTRUCTION: Assumption of Negligence. An instruction does not assume that a rail on the track was defective, which leaves that fact to be found by the jiiry from the evidence, and makes the finding of that fact essential to plaintiff’s right to recover.</p> <p>5. -: Contributory Negligence of Fellow-Servant. An instruction for plaintiff which leaves out of view the supposed contributory negligence of a fellow-servant, but charges plaintiff with the consequences of his own fault if any is found, is not incorrect.</p> <p>6. -: Inconsistent With Others Given. An instruction for plaintiff, itself correct, is not erroneous if in conflict with erroneous instructions given for defendant.</p> <p>7. -: Negligence: Master and Servant: Running Car on Schedule: Ordinancé. The city ordinance fixed the maximum rate of speed of a street car at eight miles an hour, and there was evidence that the schedule time was fifteen miles an hour. Plaintiff, a conductor on the ear, was injured by the car’s jumping the track. Held, that the defendant company cannot hold the conductor responsible for running the car at the schedule rate and in excess of the ordinance rate, even if it was the conductor’s duty to regulate the speed of the car at the point where the accident occurred. An instruction, therefore, which assumes that it was the conductor’s duty to obey the ordinance, rather than defendant’s order, in a suit between him and it, should not be given.</p>

— lion. J. L. Fort, Judge. (1) Respondents’ pleadings set up an express trust. Such a trust can not be established by parol testimony. Held: that there was no implied trust. Mulock v. Mulock, 156 Mo. 431. (1) There is no express trust pleaded nor an attempt to plead'an express trust, and so the question of an express trust is eliminated from our consideration of this case. Respondents’ petition in this cause pleads an implied, resulting trust.

Appeal. from Shannon Circuit Court. — Hon. W. N. Evans, Judge. (1) The statute law of Missouri contemplates and intends that the payment of taxes dne on land shall extinguish the tax lien, and that a sale of such land through the fault of the collector for taxes which have been paid shall not deprive the owner of his land. R. S. 1899, secs. 9266, 9329; Hubert v. Pickier, 94 Mo. 387.

Circuit Court. — How John A. Hockaday, Judge. (1) The substituted cause of action was barred by the statute on May 5, 1903, at the time the amended petition was filed. Courtney v. Sheehy, 38 Mo. App. 290; Clemens v. Greenwell, 40 Mo. App. 589; Poor v. Watson, 92 Mo. App. 101; Case v. Cordell, 78 S. W. 62; Bricken v. Cross, 163 Mo. 449; Sec. 2868, R. S. 1899. (2) At the time of this accident Charles L. Walker was sui juris. Payne v. Railroad, 136 Mo. 562.

— How. Asbury Burkhead, Judge. (1) The provision of the statute, that suits for hack taxes shall he brought against the owner of the land, is fulfilled by bringing the suit against the person who appears from the record to be the owner, in the absence of notice of the fact that such person is not the true owner. State ex rel. v. Sack, 79 Mo. 661; Simonson v. Dolan, 114 Mo. 176.

— Now. D. • H. Eby, Judge. (1) This court will review the record proper in any case brought to this court by a writ of error, and correct it agreeable to law. R. S. 1899, sec. 868; South St. Joseph, etc., Co. v. Bretz, 125 Mo. 474; Richard v. George, 34 Mo. 109; Railroad v. Lewright, 113 Mo. 660; Railroad v. Carlisle, 94 Mo. 166; State ex rel. v. Scott, 104 Mo. 26; Lillie v. Menke, 28 S. W. 648.

— No». J. W. Alexander ¡ Judge. (1) The contingent remainder vested in the parties to the partition suit was a sufficient interest to authorize the court to make partition. Those persons who constituted the presumptive heirs of Cynthia Clark, or their grantee, were before the court, and they represented all who might afterwards become entitled to the estate. Reinders v. Koppleman, 68 Mo. 482; Sikeman v. Galvin, 124 Mo. 367; Sparks v. Clay, 185Mo.393.

Louis County Circuit Court. — Ho». Jno. W. McElhinney, Judge. Held: made a departure from the general rule excluding consideration of damage from fire necessary. In the case now before the court the railway company sought to condemn a right of way through a tract of land owned by respondents in the county of St. Louis.

— Him. J. II. Slover, Judge. (1) The validity of contingent fees has for a long time been recognized by this court, but with limitations. Duke v. Harper, 66 Mo. 57. Such contracts, if upheld, must be clearly stated; must be fair in every respect, and must be sustained by considerations not nominal. Dorr v. Camden (W. Va.), 65 L. R. A. 351.

— Now. Samuel I)amis, Special Judge. Plaintiff’s action, Tbe it legal or equitable, is, as to tbe Statute of Limitations, governed by tbe five-year limit, i. e., by tbe fifth subdivision of section 4273, R. S. 1899; that is tbe only statute which would entitle respondent in any event to any relief; tbe petition after alleging tbe recording of Hudson’s deed to Gaboon on August 27,1892, and Cahoon’s deed to Parks of November 24, 1892, is barred on its face because such…

Transferred from 'Kansas City Court of Appeals. (1) By applying the judicial rule, manufactured exclusively for insurance cases, of permitting proof of waiver, although not pleaded, defendant was denied the equal protection of the laws as guaranteed by the Federal Constitution. The announcement of this rule by a Missouri court is always accompained by an apology.

Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge. ■ (1) A contract for the sale of real estate, although unilateral, may be specifically enforced. Mastín v. Grimes, 88 Mo. 478; In re Ferguson’s Estate, 124 Mo. 574; Smith v. Wilson, 160 Mo. 657. (2) Where one party has performed all the obligations imposed upon him by the contract, the.defence of want of mutuality is not open to the other party.

— Now. W. L. Jarrott. Judge. (1) The county court had no right to determine who was legally clerk for the county court. Its powers are purely statutory. It does not possess the powers' of a court of general jurisdiction and has not the powers of such either by statute or common law. Const., art. 6, sec. 36; State ex rel. v. Elkin, 130 Mo. 107; State ex rel. v. Harris, 96 Mo. 37; Sears v. Stone County, 105 Mo. 236; Coil v. Hitman’s Admr., 46 Mo. 51.

— Mon. H. W. Johnson, Judge. (1) Instruction 5, given on behalf of the State, completely ignores the element of intent or willfulness. Had the instruction read “that the defendant intentionally shot William Green with a pistol,” etc., then it would not be subject to criticism, but would state the rule of law correctly. State v. Harris, 76 Mo. 361; State v. McKinzie, 102 Mo. 620.

<p>1. ELECTION CONTEST: Instituted By Notice: Summons: Constitutionality of Statute.. An election contest for an office is instituted by the notice required by section 7029, Revised Statutes 1899. Said notice is not required to be first filed in the office of the circuit clerk, and then a summons issued running in the name of the State and commanding the contestee to appear on a day certain, before the contest may be said to be begun. Nor is said statute unconstitutional in not requiring such summons.</p> <p>2. -: -: -: -: Meaning of Constitutional Provisions. Such section is authorized by the provision of the Constitution (sec. 9, art. 8), which says that the General Assembly, in providing for the trial and determination of contested election cases, shall, by.general law, “regulate the manner, of trial and all matters incident thereto;” nor is that section of the Constitution in conflict with section 38 of article 6, which says that “all writs and process shall run and all prosecutions shall be conducted in the name of the ‘State of Missouri;’ all writs shall be attested by the clerk of the court from which they shall he issued,” etc. The law regulating the manner of conducting an election contest for any public office, except that of Governor and Lieutenant-Governor, is a code unto itself. The Code of Civil Procedure is not applicable to such a case. Under section 9 of article 8 the General Assembly had ample authority to dispense wit-h the formal writs or process known to the common law, and devise different methods to bring the contestee before the court.</p> <p>3. -: Double Purpose of Notice. | It was competent for the General Assembly to provide for a formal notice to the contestee, and make it serve the double purpose of bringing him into court and of advising him and the court of the grounds of the contest.</p> <p>4. -: Summary Proceeding: Jury Trial. An election contest to determine a right to an office is a summary proceeding, and neither party is entitled to a trial by jury.</p> <p>5. -: Filing of Notice. The notice of contest need not be filed with the clerk of the circuit court and, if not so filed, need not recite that it has been filed, nor the particular day when it will be filed. The statute does not so require, and it would seem that the filing of the original, where a copy has been served on the contestee in proper time, at any time before the commencement of the term to which the contest is returnable, would meet all the requirements of the law.</p> <p>6. -: Sufficiency of Notice: Prohibition. Where the circuit court has jurisdiction of the subject-matter of an election contest, and there is nothing in either the notice or the proceedings brought to indicate that the court has or is about to exceed its jurisdiction in the counting of the ballots, this court will not prohibit it from proceeding in the case simply on the ground that the notice of the contest, which is made to serve as a petition also, is indefinite, and contains guesses and surmises, and smacks strongly of a fishing expedition to ascertain facts which should be definitely stated, but which the pleader did not know. If the notice states a cause of action, any error of the court in reference to such indefinite allegations may be corrected on appeal.</p> <p>7. -: -: Amendment. Amendments in an election contest which do not change the grounds of the contest may be . allowed.</p> <p>8. -: -: Prohibition.. Where an application for a writ of prohibition is made to a superior court to deprive an inferior court of jurisdiction over an election contest, if enough facts are alleged in the original notice or petition in the contest proceeding to disclose that the case falls within a class of proceedings which that court is lawfully authorized to hear and determine, the question of the sufficiency of the showing made, by the petition or notice, for the purpose of setting the ' trial court in motion, is one of law for the determination of that court.</p> <p>9. -: Anticipated Error: Prohibition. Prohibition should not be applied to anticipate a ruling upon a question properly within the authority of the court to decide.</p> <p>10. -: Counting Ballots: Order. The order, set out in the statement, to the board of election commissioners of St. Louis to count and compare the ballots with the poll-books, is held not to be in excess of -the jurisdictional powers of the circuit court.</p>

<p>ELECTION CONTEST:. Expenses: Failure to File Statement: Prohibition. Whether or not the contestant in an election- contest failed to comply -with the provisions of the statute in reference to candidates for office filing a sworn statement of their election expenses, and whether or not a failure to comply with those provisions has any pertinency in the contest proceeding, are matters for the court in which the proceeding is pending to determine, and furnish no ground for prohibiting that court from assuming jurisdiction over the case.</p>

— Hon. J. L. Fort, Judge. (1) The motion in arrest of judgment should have been sustained. Held: speaking through Judge Maceaklane, that “sec. 4 of art. 12 of the Constitution, and sec. 2738 (now sec. 1268) of the statutes, entitled the corporation, when exercising the delegated right of eminent domain, to demand as a matter of constitutional right that the damages should be assessed by a jury, ’ ’ and stated further that, ‘ ‘…

Prohibition. (1) The list of judges-, clerks and challengers having been filed August 30,1902, it became an accomplished fact, and no alleged removal on September 1, 1902, of part of the members of the- committee could invalidate the action of August 30th. Burton v. Patton, 47 N. C. 124; People v. Collins, 7 Johns 549; Cotton v. U. S., 29 Ct. Cl. 207; Allen v. Blunt, 3 Story 742; Gear v. Grosvenor, 6 Fish Pat.

<p>1. MUNICIPAL INDEBTEDNESS: Refunding Debt: Extension Beyond Twenty Years: Statute: Schooi District.. A school district is not prohibited by the constitutional section requiring that provision he made, at the time of the creation of a debt, for an annual tax sufficient to pay the interest as it falls due and “to constitute a sinking fund for payment of the principal thereof within twenty years from the time of contracting the same,” from funding its debt when it comes due by issuing new bonds for the same amount to run twenty years. And section 5157, Revised Statutes 1899, as amended by Laws 1901, page 52, authorizing counties, cities and school districts, to fund their debts by issuing new bonds to run not less than five nor more than twenty years, is not unconstitutional, even though the time since the old bonds were authorized, when coupled with the life of the new bonds, would make the new bonds fall due more than twenty years after the debt was first created.</p> <p>2. ■: -: -: -: -: Case Stated. A school district legally issued ten-year bonds for building a schoolhouse, and the debt not being paid at the end of the ten-year period, the school board issued new bonds of the same amount at a reduced rate of interest to run for twenty years, the proceeds to be used in taking up and paying off the old bonds. Held, first, that the debt was still a binding and subsisting debt of the district, and could be enforced against it by the creditor or an individual, and the constitutional provision which required the board to levy an annual tax to provide a sinking fund for its payment within twenty years was self-enforcing; second, the statute authorizing the board to fund the debt by issuing the renewal twenty-year bonds is not violative of that constitutional provision, but simply provides a new remedy for paying the debt in the least burdensome way.</p> <p>3. -: -: Constitutionality: Presumption. The presumption is in favor of the constitutionality of a statute which seems to be a mature legislative evolution, and before the court would be warranted in holding it unconstitutional its invalidity in that regard should appear beyond a reasonable doubt.</p>

— Row. J. R. Slover, Judge. (1) The evidence failed to show any negligence on the part of defendant. (2) The mere failure to cover the rollers with a shield did not establish negligence per se, or show that it was the proximate cause of plaintiff’s injury. McGuerty v. Hale (Mass), 36 N. E. 682; ■Carroll v. Williston (Minn.), 46 N. W. 353. (3) A failure to instruct the servant as to dangers of a machine, which are obvious, does not constitute negligence.