Volume 195 — Missouri Reports

<p>1. BAIL: In Felony Case: Fixed by Sheriff. A sheriff has no authority to determine and fix the amount of bail to be given by a prisoner for his appearance and answer to an indictment or information charging him with a felony, and a recognizance so taken is void.</p> <p>2. -: -: -: Irregularity. The act of a sheriff in taking, without authority, a recognizance in a felony case is not a mere irregularity and does not come within the provisions of section 2800, •Revised Statutes 1899, which provides against the defeating of a recognizance on account of irregularities.</p>

— Hon; W. B, Teasdale, Judge. (1) The framers of the Missouri Constitution of 1875, by its prohibition of “fictitious” stock, and the Missouri Revising Session of 1879, charged with the enforcement of that Constitution, by the introduction into our corporation laws of the terms “bona-fide” subscription of stock, and “actually” paid, intended to put an end to “wild-cat” corporations in this State.

— Hon. W. B. Teasdale, Judge. (1) The judgment of the court sustaining a general demurrer is erroneous if the facts stated in the petition authorize a recovery upon any theory. State ex rel. v. Edmondson, 71 Mo. App. 172.

— Hon. J. W. Alexander, Judge. (1) Regardless of what may be said as to tbe liability of Crain, there is no reason why tbe rule that “tbe master is bound to take ordinary and reasonable care not to subject bis servant to unreasonable, extraordinary dangers by sending bim to work in dangerous buildings, or dangerous premises, or with dangerous tools, machinery or appliances, and if failing in bis duty in any of tbe respects mentioned and tbe servant in consequence thereof is…

— Ho». Andrew A. Evans, Judge. (1) The court should, at time of hearing the cause, when the objection was made by defendants as to the admission in evidence of the various records and proceedings in former suits, have passed upon said objections at that time and not withheld its decision, in fact virtually making no decision so far as record shows.

— Hon. W. L. Jarrott, Judge. (1) The undisputed facts failed to show any negligence on the part of either defendant or its servants. Defendant’s demurrer to the evidence should therefore have been sustained. Wait v. Railroad, 165 Mo. 620 ; Bartley v. Railroad, 148 Mo. 141; Hite v. Railroad, 130 Mo. 141; Portuchek v. Railroad, 101 Mo. App. 52; Erwin v. Railroad,. 94 Mo. App. 291; Saxton v. Railroad, 98 Mo. App. 503; Young v. Railroad, 93 Mo.

<p>1. FORM OF ACTION. There is but one form of action in this State for the enforcement or protection of private rights or the redress or prevention of private wrongs, namely, a civil action. Our Code requires a plain and concise statement of the facts constituting the cause of action, and it is sufficient if the facts so stated authorize the judgment asked for or rendered.</p> <p>2. -: Principal and Agent: Adjustment of Accounts: Conversion. The administrator’s petition stated that defendant for many years prior to the death of deceased was his confidential agent and as such received large sums of money belonging to deceased for investment, part of which he retained and used, giving to deceased therefor his notes, and that a short time before his death deceased owned certain notes given by defendant, specifically described and aggregating $182,700, besides interest, and that said notes were in defendant’s hands at the time of the death of deceased, as was $7,067.73 in money belonging to deceased, all of which were left in defendant’s possession to be exchanged for and used in the purchase of other property, and that plaintiff, after decedent’s death, demanded them, but defendant refused to deliver the same, on the ground that he held them to be used in buying stock in a railroad company to be reorganized, which could not now be reorganized, and demanded judgment for the amount of the notes and money. Held, that this petition did not state an action for the conversion of the notes and money, but by it plaintiff simply sought to adjust and settle the account between decedent and defendant for the notes and money placed in defendant’s hands during the existence of the agency.</p> <p>3. -: -: Conversion: Insolvency: Nominal Damages. Even if said action was one for conversion of funds belonging to his principal, defendant had no right to show, by way of . defense, that he was insolvent, and that the notes were valueless and that plaintiff was entitled to only nominal damages, for defendant was the maker of the notes. The maker of a note cannot obtain it, destroy it or convert it to his own use, and then set up his own insolvency in mitigation or reduction of the damages sought to he recovered. [Disapproving the oMter dictum in Fry v. Baxter, 10 Mo. 192.]</p>

Louis City Circuit Court. — Eon. Daniel O. Taylor, Judge. (1) The duty to furnish the employee a safe place in which to work and not to expose him to unknown risks not incident to the employment is personal to the master, and the master cannot relieve himself from responsibility by delegating this duty to a servant. Day-harsh v. Railroad, 103 Mo. 570.

— Hon. Samuel Davis, Judge. (1) The verdict of the jury is not only not supported by evidence, but is directly contrary to the evidence and cannot stand. Reman v. Boston Trading Co.. 87 Mo. App. 186; Kreis v. Railroad, 30 S. W. 310; Lawson v. Mills, 130 Mo. 170; (2) The damages assessed by the jury are excessive for the injury plaintiff sustained. Thomas v. Consolidated Traction Co., 62 N. J. L. 36; Ryder v. Mayor, 50 N. Y. Super. 220; Railroad v. Anderson, 80 111. App. 71.

Louis City Circuit Court. — Hon. II. D. Wood, Judge. (1) In actions to set aside contracts or conveyances on the ground of fraudulent misrepresentations, it must affirmatively appear by the clearest evidence that the representations were false; that the misrepresentations were as to material facts; and that plaintiff was induced by such representations to enter into the contract, or make the conveyance, and was thereby injured. These facts were not established in this ease.

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. (1) The Act of 1895 (R. S. 1899, sec. 2988) did not give to plaintiff a dower right in real- estate owned by Mary Ann (if she was his lawful wife) before the passage of that act. The contention of Gilroy, if sustained, would take away from his wife one-half of her property and vest it in her husband, or take away the right of inheritance from her heirs.

— Hon. H. C. Pepper, Judge. (1) This case was brought to this court on full transcript of the record containing a copy of all record entries, copies of all pleadings, and a copy of what purports to be a bill of exceptions.

Louis County Circuit Court. — Row. Jno. W. McElhi/mey, Judge. (1) If the tracks or roadbed of a railroad company are used, and have for a long time been used, by the public as a footway, with the knowledge of, and without objection from, the company, one in so using such roadbed would not be a trespasser. Le May v. Railroad, 105 Mo. 370; Lynch v. Railroad, 111 Mo. 609; Morgan v. Railroad, 159 Mo. 279'.

— Hon. Nat. M. Shelton, Judge. (1) The entire constitutional amendment in question is void because the exemption of St. Louis, Kansas City and St. Joseph is an unjust discrimination in favor of those cities against all other cities, towns and villages in the State, and is therefore a violation of the fifth and fourteenth amendments to the Constitution of the United States, which provide that no person shall he deprived of property without due process of law and guaranteeing…

— Hon. John P. Butler, Judge. (1) Section 8427, Revised Statutes 1889, is unconstitutional for the reason that it is in conflict with section 8 of article 9 of the Constitution.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) Appellant, as well as the putative assignor of the respondent, was innocent in the premises. Where one of two who are innocent must suffer, the loss must fall on him who afforded the opportunity for the wrong. Had not the original bank been remiss and grossly negligent, the loss would not have occurred. Bank v. Armstrong, 62 Mo. 67; Neuhoff v. O’Reilly, 93 Mo. 164.

— Hon. H. W. Johnson, Judge. (1) Plaintiff pnt in evidence a written contract between defendant and Pace, which fixed and defined the powers of the latter as agent. It did not authorize Pace, as agent for defendant, to make a verbal agreement for insurance. Hence, the alleged agreement, sued upon, was without authority and not binding on defendant. It was error not to instruct for a verdict for defendant on the admitted facts. Trask v. Ins. Co., 53 Mo.

— Hon. Paris G. Stepp, Judge. (1) The court erred in failing to rule on plainr tiffs’ objections to the introduction of portions of the deposition of John Hawk, that the understanding was at the time the deed was made that the land was to go to her, Orpha’s, heirs. In the absence of clear, positive and convincing evidence to the contrary, the deed is conclusively presumed to express the contract as made.

— Ho». Jos, D. Perkins, Judge. (1) Defendant is not here contending that the former judgment had any further effect than to settle the question of title as between plaintiff and… Held: The very object of the case, as its name.imports, is to quiet title. The mode accomplishing that object is to require the defendant to bring (and prosecute to a finish) a suit to test his claim (if he makes a claim), or to put a quietus on his pretension thereafter of any such claim of title.

— Hon. W. W. Graves> Judge. (1) The court ought to have sustained defendant’s demurrer to the evidence at the close of plaintiff: ’s case, (a) The evidence introduced by plaintiff failed to show that the fire in the bridge was caused by any negligence on the part of defendant, or as plaintiff alleged, (b) Because the verdict of the jury is founded merely on guess and conjecture. Peck v. Railroad, 31 Mo.

— Eon. G. A. • Mosman, Judge. (1) This case must be reversed, because there is no evidence which tends in the remotest degree to show that Abraham Davis, the plaintiff, was a resident of Buchanan county, or of the State of Missouri, or that he was a taxpayer of either, or that he owned or possessed any property of any kind located in this State, or elsewhere; in fact, he was not placed upon the witness stand, nor did he testify at all in this ease.

— Eon. Edw. P. Gates, Judge. (1) The court should have sustained defendant’s objection to the introduction of any evidence under plaintiffs’ petition. It was .nowhere alleged in said petition that the deceased, if death had not ensued, could have maintained an action under the laws of the State of Kansas, where the accident occurred, for the acts and omissions complained of. 8 Am. and Eng. Ency.

— Eon. Jno. P. Butler, Judge. The burden of establishing by clear and satisfactory evidence a contract which it is sought to have specifically enforced, rests upon the person who sets it up, and unless he meets such requirement, a court of equity will not decree specific performance. Nor will such contract be enforced where it is merely executory, and without consideration to support it!

Louis City Circuit Court. — Eo#. O’Neill Ryan, Judge. The trial court erred in submitting the case to the jury. The demurrer to plaintiff’s evidence should have been sustained. Plaintiff’s conduct was so negligent as to bar his recovery. Myer v. Railrad, 6 Mo. App. 30; Hanselman v. Railroad, 88 Mo. App. 122; Dunn v. Railroad, 21 Mo. App. 188.

— Hon. Jas. É. Hasell, Judge. (1) (a) The certified copy read in evidence showed that the instrument was filed for record- more than one year after its date. Attention of the trial court was called to the date of recording. The deed had not been on record for twenty years before it was offered.

— Roto. J. L. Fort,. Judge. (1) The deed of trust, and the trustee’s deed based thereon, offered by plaintiffs, should have been excluded by the court for the reason that they describe no property that could be located or identified from an inspection of the instruments.

— Ron. A. M. Woodson, Judge. (1) Appellant went to Illinois for the sole purpose of obtaining the decree and was at no time a resident of that State. Under these facts the decree was void and of no effect whatever, and not voidable. Andrews v. Andrews, 38 U. S. Sup. Ct. Rep. 237; 2 Bishop on M. & D., sec. 43; 9 Am. and Eng. Ency. Law (2 Ed.), 742; State v. Flack, 54 Iowa 429; Smith v. Smith, 19 Neb. 706; Lebowitch v. Lebowitch, 19 Kan. 451; Yan Fossen v. State, 37 Oh.

— Hon. Bobt. A. Anthony, Judge. (1) The land in litigation was subject and liable to taxation and being duly assessed and charged with the lien and the taxes, paid by those who held deeds (except respondent), the lien attached in favor of the State. Secs. 3, 4, 6 and 7, art. 10, Constitution; secs. 9298, 4259, R. S. 1899.

<p>APPEAL: Abstract: Complete Transcript. A filing in the Supreme Court of a complete transcript of the record does not dispense with the necessity for filing a correct abstract thereof. Both the statute and the rules of the court require an abstract, even when the case is brought up by a complete transcript; and if no abstract is filed, the appeal will be dismissed.</p>

— Hon. J. L. Fort, Judge. In addition to the salary based upon the population of his county, the prosecuting attorney shall also receive for his services in the circuit and other courts such fees as are allowed by law. Sec. 4949', R. S. 18991.

Louis City Circuit Court.— Eon. Daniel D. Fisher, Judge. (1) The demurrers to plaintiff’s evidence and to all the evidence should have been sustained, (a) Be■cause she failed to prove any substantial negligence whatever, (b) Because she failed to prove the allegations of negligence contained in her petition. Godfrey v. Railroad, 107 Mo. App. 193; Edwards v. Ins. Co., 100 Mo. App. 712; Hook v. Railroad, 162 Mo. 569; Hyde v. Railroad, 110 Mo. 272; Spiro v. Railroad, 102 Mo.

— Eon. A. D. Burnes, Judge. (1) The Statute of Wills relating to the execution, publication and attestation of wills is mandatory and not directory merely. Walton v. Kendrick, 122 Mo. 504; McGee v. Porter, 14 Mo. 611; Miltenberger v. Miltenberger, 78 Mo. 27. (2) In proof of wills the common law disabilities of parties and witnesses are in force. R. S. 1899, sec. 4655; Miltenberger v. Miltenber'ger, 78 Mo. 27. (1) The will was sufficiently proved by Hardigan and Roney.

— Eon. J. L. Fort, Judge. To entitle plaintiff to recover in an action of ejectment on the ground of having acquired the title to the demanded property hy adverse possession, it is not necessary to allege adverse possession for the statutory period. Under an averment of ownership in fee and of right to the possession at the commencement of the -action, plaintiff may prove any facts which would entitle him to recover at that time.

Mandamus. Relator is entitled to the relief prayed for because of alleged failure on the part of the respondent to perform a specific duty enjoined on Mm by law: (1) Because tbe action of the stockholders at the meeting of January 10, 1906, constituted an amendment of relator’s charter, and this amendment was authorized by an act entitled: “An act to amend sections 1312, 1332 and 1333 of article 9, of chapter 12, of the Revised Statutes of Missouri of 1899,” approved April…

Charles Circuit Court. — Eon. E. M. Hughes, Judge. (1) On the undisputed evidence the verdict should have been for plaintiffs. This court has repeatedly held that where there is no evidence to support the verdict, the court will set it aside. Sharp v. Railroad, 161 Mo. 236; Tanner v. Railroad, 161 Mo. 511.

Prohibition. (1) Relator having registered under the act of 1874, and the provisions of all subsequent regulation having been made by express statutory provisions not applicable to physicians who registered under the act of 1874, the statute subsequently enacted, conferring on the State Board of Health the power to revoke certificates, cannot apply to relator.

— Now. W. B. Teasdale, Judge. (1) Under a proper construction of the opinion of this court (172 Mo. 384), plaintiff is entitled to legal interest on the original debt from the commencement of the suit. There is nothing in the opinion to warrant a contrary construction.

Louis City Circuit Court. — Hon. Franklin Ferriss, Judge. (1) Where an injury has been sustained under such circumstances that a number of persons are liable therefor, either jointly or severally, the person injured is entitled to but a single satisfaction. If he receives satisfaction from one, it is a bar to recovery against the others, even though it were stipulated to the contrary.

Louis City Circuit Court. — lion. Franklin Ferriss, Judge. (1) One cannot by garnishment process recover his own property or its value. Under the statute, notice of garnishment has only the effect of attaching money, property or effects of the defendant in the garnishee’s possession, or indebtedness owing to him.

— Eon. David H. Eby, Judge. (1) ' The county court liad the right, which it exercised, to fix the compensation of the respondent for his services as treasurer and his commission for handling and disbursing the school funds, and it was the sole judge of the amount it would allow him and had the right to pay for. all the services in the same warrant. R. S. 1899, sees. 9849 and 6807.

— Now. James Gibson, Judge. (1) It is well settled that in determining the question of negligence it must be decided with reference to the duty that the defendant owes to the injured, and not its duty to others, generally. Feeback v. Railroad, 167 Mo. 215; Roddy v. Railroad, 104 Mo. 234. (2) It is error to admit evidence tending to show negligence on the part of the defendant in reference to matters wholly foreign to and unpleaded in the petition. Conway v. Railroad, 24 Mo.

— Now. Hugh Dabbs, Judge. (1) The court erred in admitting evidence over defendants’ objection to the effect that failed shots could be tested by exploding powder or squib shots in them.

— Hon. J. L. Fort, ■ Judge. (1) The St. Lonis, Memphis & Southeastern Railroad Company not having been a party to this case on the petition, the pretended service of summons upon it was a nullity, and the judgment against it upon such pretended service was void. 1 Black on Judgments (2 Ed.), secs. 219, 84, 183; Ford v. Doyle, 37 Cal. 346; White v. Johnson, 50 Am.

— No». Jos. D. Perkins, Judge. i (1) Even though we should not be correct in our contention that there is now, as a matter of fact, as far as plaintiff is concerned, but one cause of action before this court, which is an action for fraud and deceit, yet the cause of action for money lost at gaming, if there is such a one in the petition, and one for fraud and deceit being blended together in one petition, a general verdict thereon cannot stand, and this is especially true…