Volume 210 — Missouri Reports

Mandamus. (1) If the order dismissing relator’s appeal for •want of jurisdiction by the Kansas City Court of Appeals because of tbe error in the affidavit for appeal herein before the Dade Circuit Court, was erroneous, then mandamus will lie. Const., art. 6, sec. 3; State ex rel. v. Philips, 97 Mo. 331; State ex rel. v. Laughlin, 75 Mo. 366; State ex rel. v. Smith, 172 Mo. 446; State, ex rel. v. Smith, 172.

Transferred from Kansas City Court of Appeals. If appellant’s interpretation of the law he correct, the exemption statutes of this State are a delusion — an enactment without weight or substance. The law is well settled in this State that a debtor is entitled to three hundred dollars exempt to him as the head of a family, under section 3162, Revised Statutes 1899, in addition to his household goods and other property mentioned in section 3159’, Revised Statutes 1899.

Louis City Circuit Court. — Hon. Jas. B. Kinealy, Judge. (1) The court erred in giving instruction 1 for defendant, for the reason that the instruction has absolutely no evidence to warrant it, and is against the uncontradicted physical facts. State v. Turlington, 102 Mo. 663; State v. Anderson, 89 Mo. 332; State v. Bryant, 102 Mo. 32.

— How. W. N. Evans, Special Judge. (1) When relator presented Ms application, taxpayers’ petition, oath, bond, statement, etc., in strict •conformity with the statutes, and the county court found all questions of fact in Ms favor, including the required two-tMrds majority of qualified signers to Ms petition, then under the terms of the statutes (R. S. 1899, sec. 2993), the granting of a license became a purely ministerial duty, the performance of which he was entitled to…

— Hon. Shannon G. . Douglass, Judge. (1) There is no liability on the bond because it was conditioned to perform the judgment of the Supreme Court and not that of the Kansas City Court of Appeals. Am. Brew. Co. v. Talbot, 125 Mo. 388; Keaton v. Boughton, 83 Mo. App. 158; Nofsinger v. Hart-nett, 84 Mo. 549; Lionberger v. Krieger, 88 Mo. 160 ; Bauer v. Cabanne, 105 Mo. 110; Schuster v. Weiss, 114 Mo. 158; Warner v, C. M. L. I. Co., 109 U. S. 357; State ex rel. v. Vogel, 6 Mo.

<p>1. APPEALS: Docket Fee: Act of 1907. By the strict'letter of the law prior to the Act of 1907 there is no such thing as a “docket fee” for filing cases in the appellate courts, but the ten dollars allowed clerks of such courts by section 3241, Revised Statutes 1899, in lieu of all other fees, was no doubt commonly called a docket fee, and it was therefore perhaps that allowance of ten dollars which the Legislature had in mind when in 190? it enacted that “no appeal shall be allowed in any civil cause by any trial court to the Supreme Court, Kansas City Court of Appeals or St. Louis Court of Appeals, until the docket fee of ten dollars in such appellate court shall have first been deposited with the clerk of the trial court.”</p> <p>2. -: -: -: Failure to Pay. The payment of the fee of ten dollars to the clerk of the trial court is not jurisdictional. A failure to pay it to the clerk will not invalidate an appeal otherwise legally allowed. When failure to comply with the statute is not called to the attention of the trial court, such failure is an irregularity, which can be cured in the further pro■ceedings by tbe payment of these costs to the clerk of the appellate court, for costs they are. But if timely objection is made to the trial court, it will be authorized to refuse the appeal for failure to pay such fee of ten dollars, if the term “docket fee” used in the Act of 1907 means the costs provided for by section 3241, Revised Statutes 1899, which is not decided.</p> <p>3. -: Untimely: Excuse: Affidavits. If an examination of the affidavits filed in support of and against the motion to affirm, satisfies the court that appellant has a statutory excuse for his failure, to file the transcript fifteen days before the first day of the next term, where the appeal was taken sixty days before such first day, the motion to affirm will be overruled.</p>

<p>1. INSTRUCTIONS: Correct as a Whole. If, taking tbe instructions as a whole, they presented tbe law of the case fairly to tbe jury, tbe judgment should not be disturbed because of some technical objection to one or more of them, unless tbe subject of objection be of a character such as to prejudice tbe rights of tbe losing party.</p> <p>2. DAMAGES: Measure: Sale of Stock. Where tbe contract for the sale of stock of a company, placed in escrow, and not redeemed, fixed tbe price defendant was to pay for it, tbe measure of damages is tbe sum due under tbe contract.</p>

Mandamus. (1) Since the passage of the Act of March 13, 1901, the Democratic City Central Committee of St. Louis has ceased to be a voluntary association and has become a legally constituted body, governed by the statute. Laws 1901, p. 161; People ex rel. v. Dem. Gen. Com., 164 N. Y. 335; State ex rel. v. Witthoeft, 117 Mo. App. 625. (a) The law provides that the members of the committee shall be elected! biennially at the primary elections. Law's 1901, p. 161, sec. 21.

Louis City Circuit Court. — Row. George R. Williams, Judge. (1) The motion to quash the indictment or the count thereof upon which appellant was tried and convicted should have been sustained, because said second count is insufficient and bad whether it is based upon sections 2360, 2115, 7178, Revised Statutes 1899, or upon section 2120k, Laws 1903, p. 155.

— Ron. A. W. Lincoln, Judge. (A) On the whole evidence, the trial court should have directed an acquittal, and the judgment of this court should be a discharge of the defendant, because there is no substantial evidence to sustain the verdict.

<p>1. TAXATION: Certiorari. A writ of certiorari will lie against the city assessor to determine the validity of an assessment made by him. In fixing the value of the property assessed he acts quasi-judicially, as he does also in attempting to assess at all property claimed to be exempt from taxation.</p> <p>2. -: -: Matters Considered. The writ of certiorari brings up for review only the record of "the assessor who made the assessment, and all verbal testimony as to serving the notice and blank assessment list upon the property-owner cannot be considered.</p> <p>3. -: Exempt Property: Cemeteries. The real estate of a cemetery company used for a burying ground is exempt from taxation. But the- personal property of such company, such as the money derived from the sale of lots and horses and hearses, is not exempt, either of itself, or as an incident of the property positively declared to be exempt.</p> <p>4. -: -: Laws Rigidly Construed. Laws exempting property from taxation are to be strictly construed, and the right of exemption must be established beyond a reasonable doubt. An exemption exists only where it is expressed in explicit terms.</p> <p>5. -: -: Cemeteries: Constitution. Section 6 of article 10 of the Constitution, ordaining that ‘the property, real and personal, of the State, county and other municipalities, and cemeteries shall be exempt from taxation” does not exempt the personal property of cemetery companies from taxation. The words “property, real and personal,” in that section, are separated from, and have no connection with, the word “cemeteries.” The exemption extends only to cemeteries as such.</p> <p>6. -: -: -: Charter: Money Used for improvements. A clause in the special charter of the cemetery company providing that “after the payment of the present liabilities of said association and the reimbursement of the stockholders of the amounts of money they have advanced or may advance to purchase and improve said cemetery grounds now owned by said association, the residue of the income of said association, either from sale of lots or from any other source, • shall be forever held, kept and used by said board of trustees and their successors for the sole and only purpose of improving, embellishing and preserving said cemetery grounds now owned and controlled by said association,” cannot be construed as exempting the personal property of the association from taxation. It makes no reference to the subject of taxation, and that subject cannot be said to have- been in the minds of the Legisla- . ture when the special charter was granted.</p> <p>7. -: Assessment: Public Notice. The statute which requires the city assessor to give public notice, in a newspaper and by handbills, to all property-owners, requiring them to deliver to him lists of their property,- was enacted for the convenience of the assessor, to enable him to make his assessments with more expedition and accuracy, and his failure to comply with it does not invalidate the assessment.'</p> <p>8. -: Lists to Taxpayer: Refusal. Where the assessor calls upon the secretary and president of the corporation and asks them to make out a list of its personal property and they decline to do so, he has complied with the law, and is authorized to make out the list upon the best information he can obtain, without stating the kind of personal property assessed.</p>

— Eon. John T. Moore, Judge. The Local Option Law is unconstitutional; it is not general, but local, both as to the rules of its adoption and in its effects on the general public. The proof offered by the State shows conclusively that the result of the election was never published as provided by statute. The notice was published twice in September and twice in November, and was never published for four consecutive weeks, as required in section 3031,. Revised Statutes 1899.

Louis City Circuit Court. — How. Moses N. Sale, Judge. (1) The contract, for the breach of which this suit was brought, is a contract to manufacture.

— Ren. Wm. H. Wallace, Judge. (1) Tke court erred in overruling defendant’s motion to require tke state to' elect on which count of the information it would proceed. (2) The court erred in refusing to allow defendant to show specific acts of unchastity of .the prosecuting witness. Muller v. St. Louis Hospital, 5 Mo. App. 401; O’Connor v. Railroad, 106 Mo. App. 220; State v. Boyd, 178 Mo. 17.

— Hon. W. B. Teasdale, Judge. The petition alleges a contract to repair, which was to he performed within a year, and further that the landlord did undertake to repair, and did remove 'one furnace, and the petition alleges negligence and carelessness on part of defendant landlord. Little v. McAdams, 38 Mo. App. 187; sec. 2864, R, S. 1899; Holmes v. Railroad, 104 Mo. 381; Railroad v. Burch, 96 Ind. 346; Railroad v. Mallette, 92 Ala. 2091.

Charles Circuit Court. — Hon. Jas. D. Barnett, Judge. (1) The motion to quash raised three principal points of objection: (a) That Willis Hood, who is a joint defendant in this case, was informed against without his ever having been granted a preliminary examination, (b) That William Jeffries’ preliminary examination was not in accordance to law. (c) That the State had purposely refrained from endorsing names of known material witnesses on the information.

— Row. Henry M. Barney, Judge. The demurrer offered to the evidence of plaintiff, by the defendant, should have been sustained for the following reasons: First. There was not a particle of evidence which tended to show that the train which struck Holland was running in excess of five miles an hour at the time he was killed. Second. There was not a syllable of evidence offered tending to show the bell of the locomotive was not being rung when Holland was struck.

Louis City Circuit Court. — Hon. Wm. M. Kmsey, Judge. The court erred in denying defendant’s motion to require the State to elect, at close of all the evidence; and again erred in telling the jury in its fourth instruction that they could convict of both offenses, and which said instruction was pointedly excepted to by defendant.

St. Louis City Circuit Court.— Hon. Won. M. Kinsey, Judge. (1) The information did not fully inform the defendant of the character of the offense with which he was charged,- by failing to set out the names of the various parties constituting the association or partnership and thus failed to inform the defendant who his accusers were. State v. McChesney, 90 Mo. 120; State v. Beaucleigh, 92 Mo. 490; State v. Stowe, 132 Mo. 199’.

— Eon. Jos. J. Williams, Judge. (1) The master mechanic was a fellow-servant with the conductor and engineer in charge of the train, and hence no canse of action exists in behalf of plaintiff.

•Appeal from Chariton Circuit Court. — Ro». Jno. P. Butler, Judge. (1) In construing this will all of its provisions should he taken together and effect given to every clause of it, and the words so used construed as to meet as near as possible the intention of the testator. The first and last inquiry in the construction of a will is, what was the intention of the testator?

<p>1. WRIT OF ERROR: New Suit. The suing out of a writ of error is practically the commencement of a new suit, and such ■it is regarded in this State.</p> <p>2. -: Purchaser Pendente Lite: Notice. A monetary judgment was rendered against defendants in Roden v. Helm on March 21, 1899, and made a lien on the land. Defendant sued out a writ of error on August 28, 1900, hut gave no hond and obtained no supersedeas, but served due notice of the issuing of the writ upon W. A. Edmonston, attorney for plaintiff Roden and brother to J. O. Edmonston, defendant in this suit. At a shle, under execution, on June 16, 1899, Roden became the purchaser, received a sheriff’s deed, and on July 29, 1899, conveyed by quitclaim deed to W. A. Edmonston, who brought suit in ejectment in August, 1899, recovered final judgment on March 17, 1904, and on March 21, 1904, while the case of Roden v. Helm was still pending in the Supreme Court, conveyed to his brother, J. O. Edmonston, who was placed in possession by the sheriff, his deed reciting the prior sheriff’s deed and Roden’s deed to W. A. Edmonston. On October 25, 1905, the judgment in Roden v. Helm was reversed and the cause remanded. In that suit W. A. Edmonston was Roden’s attorney. Held, that J. O. Edmonston was a lis pendens purchaser, and took the land subject to the result of the suit of Roden v. Helm.</p> <p>3. -: —;-: General Rule. A purchaser of land within the time a suit affecting the same is pending on writ of error in the Supreme Court is chargeable with legal and constructive notice that his title is subject to the result of said suit. A lis pendens, prosecuted in good faith, whether bond is given or supersedeas is obtained or not, is a notice to any and all purchasers that the decree therein will bind any interest in the property affected thereby that they may acquire by their purchase.</p> <p>4. -'-: -: Notice: Quitclaim Deed. One who takes land under a quitclaim deed occupies the same relation thereto that the grantor did.</p> <p>6. -: -: -: Recital In Deed. The deed from W. A. Edmonston to defendant J. O. Edmonston, describing the land conveyed as that “conveyed to Turner as trustee for Thomas and Anna Helm and their children” and as “the same land conveyed by the sheriff to Roden” and as “the same land conveyed by Roden and wife to W. A. Edmonston,” put J. O. Edmonston upon notice as to the nature of his grantor’s title, and that the property was trust property, not only for Thomas . and Anna Helm, but for all their children, including Mamie and Richard not made parties to the suit of Roden v. Helm then pending in the Supreme Court on writ of error, and hence he cannot claim to be a purchaser without notice, for such information, if followed up, would have given him actual knowledge of the trust.</p> <p>6. -: -: -: Attorney. An attorney who was plaintiff’s attorney in the trial of the cause, which resulted in a judgment that was subsequently reversed on writ of error, and was cognizant of all the facts, is chargeable with notice in the same way plaintiff was; and if, while said suit was pending in the Supreme Court, without supersedeas, execution issued and plaintiff bought, and thereafter conveyed to the attorney, the attorney is not absolved from the effect of the notice by the fact that he was not plaintiff’s attorney at the time he purchased the lot from him.</p> <p>7. -: -: -: Trustee for Beneficiaries. One who acquires property through plaintiff by purchase after judgment and execution sale to plaintiff, with notice of writ of error pending which involves the validity of the judgment, or, it being trust property, with notice of such facts as would put him upon inquiry, is chargeable with the invalidity of said judgment, and holds it in trust for the beneficiaries, and it being trust property it may be followed into his hands.</p> <p>8. ESTOPPEL AND LACHES: Must Be Pleaded. Estoppel in pais, in order to be available, must be pleaded. Nor will laches relied upon as an estoppel be available unless pleaded.</p>

Louis City Circuit Court. — Ron, Horatio D. Wood, Judge. (1) An agent who possesses an interest in conflict with the interest of his principal cannot act for his principal without disclosing to the principal such adverse interest. 1 Clark & Skyles, Agency (1905), sec. 406, p. 910; Mechem on Agency, secs. 66, 67, p. 48; Cook v. Berlin, etc., Co., 43 Wis. 448.

Louis City Circuit Court. — Roto. Moses N. Sale, Judge. (1) Where an action is brought by a trustee for the benefit of third persons, they are the real parties, and the trustee has no individual interest in the action unless he is a co-beneficiary, expressly or of the same class, and then he has no- greater or other interest than the other members of the class. St. Louis v. Gr. H. Wright Contracting Co., 202 Mo. 451; Natl.

Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge. (1) The city of St. Lords is given power by its charter “to construct and keep in repair all bridges, streets, sewers and drains, and to regulate the use thereof.” Charter, art. 3-, sec. 26, cl. 2. The power which the State primarily has over streets and highways in the State or. in any city of the State has in St. Louis been delegated to that city. State ex rel. v. Railroad, 151 Mo. 183.

Prohibition. (1) Prohibition is the proper remedy. State ex rel. v. Elkin, 130- Mo. 90; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Bradley, 193 Mo. 33; State ex rel. v. Fort, 178 Mo. 518. (2) The act created an additional division to be known as Division Two of the criminal court of Jackson county, Missouri, and under section 8 the duty of Judge Wallace was clear, and the cause should have been transferred to Division Two of the criminal court of Jackson county.

— Hon. W. N. Evans, Judge. The judgment should he affirmed for the reason that appellant failed to file a transcript or certified copy of the judgment in' the cause for more than a year after the rendition of said judgment and order granting an appeal. Deere & Co. v. Hucht & Furlong, 32 Mo. App. 158; Bohb v. Ins. Co., 32 Mo. App. 256; Bausman v. Kirtley, 47 Mo. 28; Bohb' v. Comfort, 47 Mo. 36; Koenig v. Rohlfing, 47 Mo. 163; Redway v. Chapman, 48 Mo. 218; Land & Invest.

— How. J. H. Slover, Judge. (1) The petition alleges, and the affidavits attached thereto show, conclusively, fraud in the inception of the judgment. The petition alleges that the case of Mullins v. Reiger was brought for the fraudulent purpose of extorting money from the appellant herein, and that the apparent jurisdiction of the court was based upon the fraudulent acts of the third parties of which the plaintiff in that suit was advised.

<p>1. EQUITY: Conversion: Action at Law. Where the petition, charges that one Heilman in his lifetime converted to his use the stock of a corporation which had been pledged to him in his lifetime to secure him, as the beneficiary of a deed of trust, harmless against a prior deed of trust which was after-wards adjudgea invalid, a suit in equity, brought against said - Heilman’s widow and the trustee of the second deed of trust made for Heilman’s benefit, cannot be maintained, unless there is an allegation that Heilman’s estate or that of the trustee is insolvent or unless some other facts are alleged which would indicate that the relief sought could not be obtained by am action at law.</p> <p>2. -: -: -: Delay. And in such case it is significant that no effort was made to obtain relief for four years, that an action at law coula have been instituted against Hellman in his lifetime and was not, and that final settlement of his estate is alleged to have been made. Such conduct does not readily arouse a court of equity.</p> <p>3. DEED OF TRUST: Redemption: Suit on Notes. Where the deed of trust was foreclosed and the mortgagors were sued for the balance on the mortgage notes, that suit would have been an appropriate time to have contested with the purchasing mortgagee his right to recover the balance on the notes, if any fraud was perpetrated against the mortgagors by reason of the sale.</p> <p>4. -: -:■ -: Insufficient Pleading. A petition to redeem from sale under a deed of trust, based on loosely-worded verbal promises made to the mortgagors (who had sold their right of redemption) by the purchasing mortgagee through his agent and the trustee, to the effect that they would be perr mitted to redeem at any time they got ready to do so, does not state a cause of action.</p>

— How. Samuel Davis, Judge. (1) The action for wrongful death given by our (statute is not a new cause of action. The act continues or transmits to the persons therein named the same action which the party whose death is occasioned would have had had he lived.

— Hon. Jno. P. Butler, Judge. The income and revenue for the year 1890 was exhausted by the payment of warrants issued prior to those in suit, and' prior to the issuance of the warrants sued on defendant had become indebted in excess of its income and revenues for said year of 1880’, and said warrants are void.

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. (1) The mayor has no judicial power, and the clauses in the St. Louis charter that attempt to confer such power on him are in violation of the State Constitution. Albright v. Fisher, 164 Mo. 56; State v. Stone, 120' Mo. 428; High, Ex. Leg. Rem. (2 Ed.), sec. 118; Dullam v. Wilson, 53 Mich. 393; sec. 1, art. 6, State Constitution; State v. St. Louis, 90 Mo. 19; State v. Brown, 57 Mo.

Clair Circuit \ Court. — Son. W. W. Graves, Judge. (1) The attempted reservation in the deed from, plaintiff Bunch to Fisher of a right of way through the premises conveyed was void for want of certainty. “The right of a way near the original-road” describes nothing and reserves^ nothing. Peterson v. Beha, 161 Mo. 513; Railroad v. Story, 96 Mo. • 621; Barrett v. County Court, 44 Mo. 202; Railroad v. Newsom, 54 Ind. 125; Sonnells v. Minnesota Lake,' 50 Minn. 556.

— Eon. E. M. Bearing, Judge. (1) The amended petition does not state facts sufficient to constitute a cause of action. The petition alleges that the plaintiff is a Maine corporation. It does not allege that it has complied with the laws of this State. A foreign corporation that has not complied with the laws of this State cannot maintain an action in this .State.

Habeas Corpus. This petitioner rests Ms application for a writ of hateas corpus upon the following contentions, to-wit: (1) The provision for the issuance of informations as a concurrent method of procedure with indictments-is repugnant to the Constitution of the United States-in the fifth amendment, which provides that “no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury,” no power having ever…

Louis City Circuit Court. — Row. Hugo Muench, Judge. (1) The court committed error in permitting witness Brown to testify to the movements, actions, conduct and statements of defendant after the commission of the alleged offense. It was no part of the ■res gestae. But assuming the competency of the repetition of defendant’s admissions or statements to Brown, then the court should have given to the jury •a, cautionary instruction thereon, and its failure so to do is error.

— Now. Jas. T. Ne-ville, Judge. (1) No person can become a purchaser at a judicial sale who has a duty to perform in reference thereto which is inconsistent with the character of purchaser or who is so connected with the sale that his individual interest as a purchaser might be inconsistent with his duty. 24 Cyclopedia Law and Evidence,' p. 29; Grumley v. Webb, 44 Mo. 451; McCelvey v. Thompson, 7 S. C. 185; Manning v. Hayden, Fed. Cas. No. 9043.

Transferred from St. Louis Court of Appeals. (1) Upon the issue made- by the petition and answer plaintiffs must show legal title to- the land.McCabe v. Hunter, 7 Mo. 355; 3 Pomeroy, Equity, sec. 1388. The statutory mode, of partition, such as this is, does not include equitable jurisdiction of the subject.

— So». John G. Park, Judge. The court erred in setting aside the verdict and granting a new trial to plaintiff. Noble & Ware v. Mitchell (Ala.), 25 L. R. A. 238; Roose v. Roose, 145 Ind. 482; Busche v. Scully, 107 Ind. 246; Obert v. Strube, 51 Mo. App. 621. (1) The court did not err in setting aside the verdict and granting a new trial to the plaintiff. Norton v. Railroad, 40 Mo: App. 642; McDonald v. Cash, 45 Mo.

Louis City Circuit Court. — Eon. Daniel G. Taylor, Judge. (1) Under the evidence the finding and judgment upon the cross-bill should have been in favor of defendant. (2) The first and third instructions given by the court at the instance of the plaintiff are erroneous.