Volume 207 — Missouri Reports

St. Louis City Circuit Court.— Hon. Moses N. Sale, Judge. (1) The court undoubtedly erred in instructing the jury upon the evidence submitted to them that the defendant was not guilty of embezzlement, but that they might from the facts proved' find him guilty of larceny.

<p>Appeal from Camden Circuit Court. — Ho». Argus Cox, Judge.</p>

Louis City Circuit Court. — Ho». Moses N. Sale, Judge. (1) The information is fatally defective. It fails to charge a. public offense or this defendant with the commission of any offense. It is silent as to whom the concubinage was to be committed with. It fails to charge that defendant took prosecutrix away for the purpose of concubinage with himself. The two elements, the taking away, etc., followed by actual “concubinage” must be alleged and proved.

<p>NO SENTENCE OR JUDGMENT: Appeal: Submission Set Aside. Where the record in. a criminal case discloses that no sentence was pronounced or judgment entered on the verdict, the submission of the appeal will be set aside and the cause remanded with directions to the trial court to cause defendant to be brought before it and to pronounce sentence and enter up judgment on the verdict returned by the jury.</p>

— Hon. J. L. Fort, Judge. (1) The court should have given defendant’s instruction 2. The act charged in the information, and the' gifts of liquor proven on the trial, are not within the spirit or the. terms of the Local Option Law. This law was directed against the traffic in intoxicating liquors and was not intended to regulate the habits or appetites of individuals. R. S. 1899, art. 3, chap. 22, p. 764; Ex parte Handler, 176 Mo. 390.

— Now. John P. Butler, Judge. Under the conditions of the bond, when the defendant, Roy Charles., pleaded guilty, the obligation of the bond was fully satisfied, and the clause “not to depart the court without leave,” is- mere surplusage. State v. White-cotton, 63 Mo. App. 12; State v. Poston, 63 Mo. 521; State v. Livingston, 58 Mo. App. 449; State v. Creech, 69 Mo. App. 380; State v. Murmann,' 124 Mo. 502.

Francois Circuit Court. — Hon. Bobt. A. Anthony, Judge. (1) Is the proper remedy by injunction in this case! (a) This is a suit by injunction to determine appellant’s right to hold or execute a franchise. The laws of the State provide that quo warranto is the remedy in such case. R. S. 1890', sec. 4457. (b) The above statute provides an adequate legal remedy and equity will not. entertain jurisdiction where there is an adequate remedy at law.

Francois Circuit Court. — Hon. Robert A. Anthony, Judge. (1) The act gives the corporation power to hold the land in “fee simple.” A fee simple is defined to be the largest estate and most extensive interest that can be enjoyed in land, being the entire property therein. 2 Blackstone’s Commentaries, 106.

Mandamus. The Kansas City Court of Appeals errect in affirming the judgment; erred in refusing to consider the manifest and manifold errors committed by the trial court, and entirely overlooked the repeated rulings of the Supreme Court; and erred in holding that no bill of exceptions had been filed because there was no vacation entry showing such filing. The court entirely overlooked the fact that the bill of exceptions was filed within the time allowed by an order of court.

Mandamus. (1) Section 8187, Revised Statutes 1889, does not repeal the Act of 1887. Held: has elapsed. Hess v. Washoe, 6 Nev. 104; Boone v. State, 10 Tex. App. 418; 6 Am. and Eng. Ency. Law, 794; State ex rel. v. Jenkins, 43 M:o. 261; State ex rel. v. Ruark, 34 Mo. App. 325; State v. Webb, 49 Mo. App. 407; In re Wooldridge, 30 Mo. App. 612; State ex rel. v. Bowerman, 40: Mo. App: 576; State ex inf. v. Dabbs, 182 Mo. 367.

—Hon. N. M. Bradley, Judge. (1) The positive, affirmative testimony of witnesses, who heard a bell ring or a whistle sounded, is not contradicted by those who did not hear it, unless the attention of the latter was called thereto, and they failed to hear the same. Henze v. Railroad, 71 Mo. 638; Britton v. Railroad, 81 N. W. 254; Culhans v. Railroad, 60 N. T. 137; Mc-Keever v. Railroad, 88 N. Y. 667; Hrias v. Railroad, 152 Pa.

Certiorari. (1) The Chief Inspector of Grain for the State of Missouri is a state officer, appointed for a fixed term of four years by the Board of Railroad and Warehouse Commissioners, and can only be removed from office for cause; that is, “after due presentation of charges embracing causes for his removal, and notice of the same with a reasonable opportunity to be heard upon such charges before said board of commissioners.” Secs. 7624, 7654, 7656, 7662, R. S. 1899; State…

Louis City Circuit Court. — Him Warwick Hough, Judge. (1) Instruction 9 should have been given.

Motion to Tax Pee for Plaintiff’s Attorney. STATEMENT BY THE REPORTER. Suit was brought by Ervine P. Padgett, a minor, by her guardian, against James H. F. Smith, to establish a resulting trust in certain lands in the minor’s favor, and for partition of said lands between her and defendant.

— Row. R. C. Timmonds, Judge. In appeal cases from inferior courts to the circuit court the transcript is the authority of the appellate court to hear and determine the cause, and when the transcript shows the circuit court had no jurisdiction to try and determine the cause, it necessarily follows that the Supreme Court has no jurisdiction. R. S. 1899, sec. 4069; Devore v. Staeckler, 49 Mo. App. 547; Smith v. Chapman, 71 Mo. 217; Kelm v. Hunkier, 49 Mo. App. 664.

— No». Nat. M. Shelton, Judge. (1) Defendant was not guilty of the negligence charged. The rock fell in a new entry not yet taken over by defendant. The rule as to “safe place to work” does not apply to newly excavated portions of a mine. White’s “Personal Injuries in Mines,” sec. 401.

Charles Circuit Court. — Row. R. W. Johnson, Judge. Instruction 1, given for plaintiffs, is erroneous, (a) It is so worded as to direct the jury to find for plaintiffs if they believe the car could have been stopped after the deceased child started to cross the street and before she was struck, thereby assuming that she was in a position of danger the moment she started to cross, instead of leaving that question to the jury to determine as an issue of fact, (b) It did not…

Louis City Circuit Court. — How. Warwick Hough, Judge. The requirements of the law will be met if the description informs the owner and the public with reasonable certainty what property is to be sold. Doherty v. Real Est. Title, etc., Co., 85 Minn. 520; Kelly v. Sanders, 90 IT. S. 441; French v. Patterson, 61 Me. -203; Cooper v. Holmes, 71 Md. 20; Smith v. Messer, 17 N. H. 420; State, Allen, Pros. v. Woodbridge, 42 N. J. Law 401.

Louis City Circuit Court.— Eon. John A. Blevins, Judge. (1) A stockholder of an Illinois, corporation is liable to a creditor thereof to, the amount of the unpaid balance due on his shares. Held: Woolfolk v. .January, 131 Mo. 620; Carp v. Chipley, 73 Mo. App. 35; 3 Thompson on Corporations, 3008.

Charles Circuit Court. — Ho». H. W. Johnson, Judge. (1) The demurrer to the evidence should have been sustained because none of the negligence charged in the petition was shown. A plaintiff can never recover in a negligence case without proving some negligence on the part of defendant. Harper v. Railroad, 187 Mo. 575; Chandler v. Gas Go., 174 Mo. 321.

Louis County Circuit Court. — flow. John W. McElhinney, Judge. (1) The court erred in giving plaintiff’s first instruction, because the instruction assumes that plaintiff was in a position of danger at the time the ear is alleged to have been set in motion, when, under the pleadings and proof, that was a disputed and a contested fact. Instructions should not assume controverted facts. Maxwell v. Railroad, 85 Mo. 105; Koenig v. Railroad, 173 Mo. 722; Siegrist v. Amot, 10 Mo.

<p>1. BENEFIT ASSESSMENT: Sidewalk:. Private Way. If the street or alley is private property belonging to the adjoining property-owner, and not a public street or alley, the city has no power, under the provision of the Constitution saying “that private property shall not be taken or damaged for public use without just compensation,” to tax it with the cost of a sidewalk.</p> <p>2. -: -- — : Alley. The fact that the witnesses and counsel designate the narrow street as “alleys” is of no significance in determining whether they are streets or alleys,</p> <p>3. -: Public Street or Alley. The recorded plat shows-that the land on which the city is built was laid out into squares, numbered 1 to 236, averaging in size two hundred feet square; that these squares face in four directions upon strips of ground, unnamed eitheir streets or alleys, varying in width, but the marginal notes refer to the squares as blocks, and to the strips as streets; and that there are twelve strips running north and south and the same number east and west, and two in each direction through the centeir of the. town are forty feet wide, while all other - strips are fifteen feet wide. All the squares had been sold according to the plat, as facing on the strips, and residences have been built thereon. Many years ago the city took charge of the strips and improved them as streets, and on one of these fifteen-foot strips in front of the squares owned by plaintiffs there has been for over twenty years a board sidewalk. The public school building is on a square one block south of plaintiffs’ property, and there is no other way for school children to reach the school, or for the public generally to reach their homes and various portions of the city, except by traveling over the strips indicated on the plat, and they have been so used ever since the plat was filed. The plat does not appear to have been signed or acknowledged by any one, -but in the upper right hand corner are the words: “Western Boundary of Cummins & Simm’s Addition to the City of Hairrisonville.” Held, that, first, that the intention of the owner, whoever he was, was to dedicate the strips to public use, is manifest by the reference to them as streets in the marginal notes, by filing the plat for recoird, and by then selling the blocks of ground according to the plat; second, tlie fifteen-foot strips were not private alleys, but public streets; and, third, being public streets, tbe city has authority to construct a concrete sidewalk in place of the board sidewalk, and to charge the cost thereof as a benefit assessment against the adjoining property.</p> <p>4. -: Alley: Public Street. Whether or not a city of the fourth class has authority to construct sidewalks along its alleys is not for determination if the highway is not an alley but a public street. A city of that class has express authority to construct sidewalks along its public streets.</p> <p>5. -: Without a Hearing. The statute which directs the assessment of the costs of a sidewalk against the abutting property, without a hearing as to the benefits thereto, is not unconstitutional.</p>

Louis City Circuit Court.— Eon. Walter B. Douglas, Judge. (1) A process of preparing material for street construction, in conformity to ordinances and under contract with the city, cannot properly be declared, by the city itself, to be a nuisance. Trans. Co. v. Chicago, 99 U. S. 635.; Clemens v. Ins. Co., 184 Mo. 46; Van de Vere v. City, 107 Mo. 83; Payne v. Railroad, 112 Mo. 17; Casey v. Hoover, 114 Mo. App'. 61; 1 Ency.

<p>1. DEPOSIT: Used for Both Deposit and Security. A transaction by which the owner of monely deposits it with a company and at the s'ame time receives a certificate of deposit for the same amount from a trust company, bought by the same fund and delivered to him and held by him as security for his deposit, is illegal and fraudulent.</p> <p>2. CERTIFICATE OF DEPOSIT: Fraudulent Transaction: Owner: Delivery. A certificate for six thousand dollars was issued by an Indiana Trust Company, and endorsed by the payee to a Missouri Trust Company, and a Securities Company issued to him a certificate of deposit for the amount, under an agreement to pay him six per cent per month thereon, and he and the Securities Company joined in a letter, in which was inclosed the Indiana Trust Company certificate, to the Missouri Trust Company to issue a certificate of deposit to the Securities Compa.ny and send it by mail to the depositor to be held by him as security for the certificate issued to him by the Securities Company, and that was done, and this agreement being illegal and fraudulent, in a suit on the certificate issued by the Missouri Trust Company, the receiver of the Securities Company being interpleader, it is held, first, that the depositor cannot plead his own fraud and take the fund out of the purses of the Securities Company, nor can the receiver of that company compel him to put it into its coffers if that has not already been done, and, therefore, the question is, was the fund ever delivered to the Securities Company? Second, at no time was the certificate under the control of the Securities Company or in its possession, nor was the amount placed to its credit by the Missouri Trust Company and made subject to its check, and the transaction being tainted with fraud and therefore there being no valid or enforcible agreement to deliver, there was no delivery, and therefore the receiver is not entitled to it.</p> <p>3. -: -: -: in Equity. Where the whole transaction is tainted with fraud it will not be held that the thing sued on was, in equity, delivered, unless it was actually delivered.</p> <p>4. -: -: —:-: Other Like Depositors. It is immaterial whether the creditors of the company for which the receiver interpleads were of the same kind and character of depositors as the beneficial plaintiff who by fraudulent transaction secured a certificate of deposit from the company for a large sum of money and received as security therefor another certificate of deposit • issued to depositee by another company in lieu of the one he used to purchase the company’s certificate of deposit, since the whole question is whether or not the other company’® certificate, which is sued on, was ever delivered to the receiver’s company.</p>

— How. Asbury Burkhead, Judge. (1) The presumption of law, independent of proof, is that an instrument purporting on its face to be a sale, is what it purports to be, and to overcome this it has been said by many authorities of undoubted repute that the evidence that a mortgage was in fact intended must be clear, satisfactory and convincing, cogent, precise and indubitable, explicit and unequivocal or at least conclusive. 20' Am. and Eng. Eney.

Louis City Circuit Court. — Row. O’Neill By cm, Judge. Plaintiff’s instruction 7 was proper, and the court erred in granting a new trial because such instruction was given. Weller v. Railroad, 164 Mo. 205; Riska v. Railroad, 180 Mo. 168; Eckharcl v. Railroad, 190' Mo. 593; Mockowik v. Railroad, 196 Mo. 511; Railroad v. Landrigan, 191 U. S. 461. Plaintiff’s instruction 7, for giving which the trial court confessed error, was clearly erroneous.

— No». N. C. Pepper, Judge. (1) Section 6975', Revised Statutes 1899, is clearly unconstitutional and is in violation of section 30, article 2, of the Constitution. It undertakes to make and hold a person responsible for habits and traits of his animals or those upon or about his place regardless of his knowledge of their habits or traits or viciousness, and the enforcement of this statute would deprive a person of his property without due process of law.

Louis County Circuit Court. — Now. John W. McElhinney, Judge. (1) The court erred in not dismissing the petition of the plaintiff: (a) Because there was a failure on the part of plaintiff to prove material and necessary allegations in his petition, in that he failed to show that the track of defendant was laid without the authority of the county or State and against his own protest and objection.

Louis County Circuit Court. — No». Jolm W. McElhinney, Judge.- (1) The action was properly brought in the circuit court of St. Louis county, in the name of the State and a,t the relation of the Attorney-General. State ex rel. v. Zachritz, 166 Mo. 307; State ex rel. v. Stobie, 194 Mo. 48; 1 Beach on Injunctions, secs. 351-5’.

— Hon. Henry C. Riley, Judge. Under tbe facts tbe title bad passed from Coleman to Reynolds. Tbe latter bad paid $5.00 per thousand for eacb thousand feet of lumber as per estimate; be bad marked eacb separate stack in which tbe 349,200 feet were contained with bis initials; be bad received a receipt from Coleman, bis vendor, containing tbe stack numbers of tbe stacks sold and initialed, and be had taken possession of all of said stacks and was loading ont the lumber.

Louis City Circuit Court. — Row. Horatio D. Wood, Judge. (1) Since plaintiff’s duties required him to work upon the elevator platform, it was incumbent on defendant to see that the elevator was safely suspended. This involved the furnishing of a rope or cable of sufficient strength, and a continuous duty of inspection on the part of defendant, to see that it remained so.

Transferred from St. Louis Court of Appeals. (1) Service on the party himself must he had unless the attorney is mentioned in the statute. The fact that defendant was a corporation is no excuse for serving defendant’s attorneys rather than defendant. By a perusal of the statutes and the decisions of our courts construing them, it will be seen that wherever service on defendant is required the service must be the same as would be had in case of a summons instead of a notice.

— #0%. A. D. Burnes, Judge. (1) The court should have given the peremptory instruction to find defendant not guilty, asked by defendant at the close of the evidence in chief, and also at the close of all the evidence, because the evidence failed to show that the property alleged to have been stolen was the property of the prosecuting witness, and did not show any wrongful tailing, which would support a conviction of larceny. 18 Am. and Eng. Ency.

— Wo». Jno. W. Moore, Judge. Where there is no hill of exceptions and no error appearing in the record proper, the judgment will be affirmed. State v. Nicholas, 193 Mo. 214; State v. Sparks, 191 Mo. 162; State v. Kearney, 199 Mo. 167.

<p>Appeal from Shannon Circuit Court. — Hon. Wm. N. Evans, Judge.</p>

Transferred from St. Louis Court of Appeals. (1) The petition filed with, the county court was not sufficient to confer jurisdiction on said court to make any order under section 3027, Revised Statutes 1899, as the prayer is to submit to the voters the question as to whether dramshop' license shall be issued. This question cannot be voted on.

— Row. John T. Moore, Special Judge. (1) The theory of the defense in this case was that the killing of the deceased was of no graver grade of crime than manslaughter in the fourth degree.

— Hon. Jolm A. Rich, Special Judge. (1) The court did not err in admitting in evidence on rebuttal the testimony of defendant given on the two former trials. Kelley’s Crim. Law and Pkac., sec. 285; Underhill on Crim. Evid., sec. 131. (2) Appellant complains that the evidence did not justify the court in giving an instruction for murder in the first degree. The court did not err in giving such instruction.

Charles Circuit Court. — Row. Jas. D. Barnett, Judge. (1) The description of the property alleged in the information to have heen embezzled must be proved as laid. If the evidence showed that Mispagel embezzled anything, it was a draft, not money, as charged in the information. The variance is fatal.

— Hon. Nat. M. Shelton, Judge. Defendant filed his hill of exceptions as soon as the stenographer would make his record. Both court and counsel intended the record of extensions of time to he regular, hut it seems the Attorney-General’s abstract of record shows it was missed one day. Notwithstanding this, if upon the record or if upon a review of the record proper, the case can be reversed, it ought to be done.

— Hon. Wm. G. Ellison, Judge. (1) “The term bailee, when used in statutes declaring what acts of embezzlement shall constitute a public offense, is not to be understood in its large, but in its limited sense, as including simply those bailees who are authorized to keep, to transfer, or to deliver, and who receive the goods first bona, fide and then fraudulently convert.

<p>Appeal from St. Louis Court of Criminal Correction.— Hon. Wilson A. Taylor, Judge.</p>

— lion. William H. Martin, Judge. (1) The court erred in overruling appellant’s motion in arrest of judgment, for the reason that the information is insufficient to support a judgment of conviction. A careful examination of this information discloses the fact that it nowhere shows or alleges any connection whatever between the assault and the mortal wound which it alleges was inflicted upon deceased.

— Hon. Jas. E. Has ell, Judge. (1) The evidence must be, under a demurrer, most favorably considered to the plaintiff and the testimony on the part of the plaintiff should be taken as true, and every reasonable inference therefrom in plaintiff’s favor should be made. Schermerhorn Bros. v. Herold, 81 Mo. App. 461; Dorsey v. Railroad, 83 Mo. App. 528; Steube v. Chritopher, 85' Mo. App: 640; Pauck v. St. Louis Dress Beef Co., 150' Mo. 467.

— Hon. Hugh Dabbs, Judge. (1) Under the facts shown in evidence plaintiff did not forfeit his right to commission from the defendant, nor forfeit his right for damages herein on account of his arrangement with House by which he was to receive a share of the amount paid by the purchaser. It appeared from the evidence that defendant had fixed the price for his property, to-wit, $85,000'.

— Row. Shannon G. Douglass, Judge. Has this court jurisdiction of this case? The question of jurisdiction naturally arises at the outset. It is clear that the title to real estate is not involved, as this court has so decided in a suit to enforce a lien for taxes. State ex rel. v. Elliott, 180 Mo. 658. The only other ground of jurisdiction would he that the case involves “the construction of the revenue laws of this State.” Const, of Mo., art. 6, sec. 12.

<p>1. MORTGAGE: Deed Absolute on Face: Redemption. A deed absolute on its face may be shown to be a mortgage, and courts, in the exercise of their equity powers may declare it to be a mortgage and permit the grantor to redeem.</p> <p>2. -: -: When? Debtor and Creditor. A conveyance absolute on its face will not be held to be a mortgage unless the relation of debtor and creditor existed between the grantor and grantee. It is essential that the facts show the existence of a 'debt due from the grantor to the grantee, and that it was their intention in the execution of the deed to secure the payment of that debt, or at least the facts should be of such a nature and character as to authorize a legitimate inference that such was the intention of both parties.</p> <p>3. -: -: This Case. Plaintiff’s land had been sold under a deed of trust to the mortgagee, and plaintiff and defendants as sureties entered into bond to redeem the land, and plaintiff by warranty deed conveyed it to defendants and at the same time entered into a written agreement by which defendants were within the year to furnish the money necessary to redeem the land and to pay taxes, and any of the parties might sell it at not less than a stated price, and plaintiff was to have possession until the next March and pay rent until then, and if the land was sold the money expended in redeeming it and all other expenses were to be paid and the surplus divided equally between plaintiff and defendants, but “should either party fail to find a purchaser before March 1st, then this contract to be at an end and said land to be considered as deeded absolutely” to defendants and plaintiff “to give possession without further notice on March 1st.” The bond to redeem was not accepted by the purchasing mortgagee, and thereupon one of the defendants paid off the amount due under the deed of trust, and took up said note and deed of trust, and the other defendant by quit-claim deed released to him. The land was not sold, and on March 1st plaintiff yielded possession to said defendant. Held, that the facts do not establish a relation of debtor and creditor between plaintiff and defendant, nor are they of such a nature as to authorize a legitimate inference that the warranty deed was intended by the parties to be a mortgage.</p> <p>4. -: -: Conditional Sale. A conveyance of land, burdened and qualified with a condition that either of the parties within a given time may sell the land at not less than a named price, the balance, after lifting an existing encumbrance and paying expenses with the money acquired by the sale, to be divided among the parties, is a sale, and not a mortgage.</p> <p>5. -: -: Security. The ultimate fact which converts an absolute deed into an equitable mortgage is that it was given as a security.</p>

— Ro». A. F. Evans, Judge. The motion for judgment on the pleadings should have been sustained. Defendant could not, upon his answer, deny that he was in possession when we sued: (a) Because his plea of adverse possession admits the fact of possession. Tatum v. St. Louis, 125 Mo. 647. (b) Because unless the ground described in paragraph two of the answer was part of the land sued for, the plea would have no pertinency whatever to the case.

<p>APPELLATE JURISDICTION: Title to Real Estate: Execution: Homestead. Where the only issue in the case is whether defendant has a homestead in the real estate which has been seized and levied upon and advertised for sale under execution, title to real estate is not so involved as to give the Supreme Court jurisdiction of the appeal from the order of the court setting aside an order sustaining a motion to quash the levy of execution.</p>

— Hon. Jos. D. Perkins, Judge. Appellant was entitled to dower in the homestead of her deceased husband. Chrisman v. Lind'erman, 202 Mo. 605. The facts found hy the commissioners show that appellant was entitled to have the entire homestead tract assigned to her as a part of her dower, and therefore the judgment should have given her dower, as well as homestead, in that tract. 11 Ency. PI. and Pr., 906-, 907, 908. (1) From what is appellant prosecuting her appeal?

— Hon. Geo. W. W anamaker, Judge. (1) The uncontradicted evidence is that a fiduciary relation existed between plaintiff and his brother, who agreed to pay the taxes and look after plaintiff’s lands. Defendant proved plaintiff’s assertion of this relation by McClanahan in his interview at Salt Lake City in 1892, and by Marshall and Brawford in 1894 at Unionville.

Louis City Circuit Court. — No». O’Neill Ryan, Judge. (1) The court erred in sustaining plaintiff’s motion for a new trial, as defendant’s instruction 5 properly declared the law. It correctly stated plaintiff’s duty while on the inner footboard of the car. Allen v. Railroad, 183 Mo. 411; Aslibrook v. Railroad, 18 Mo.