Volume 214 — Missouri Reports

<p>1. ORDINANCE: Signed by Mayor’s Secretary. When a document is required by the common law or by statute or by the charter to be “signed” by any person, a signature of his name, in his own proper or personal handwriting, is not required. Where the charter simply provided that the mayor shall sign an ordinance if it meets his approval, if the mayor examined the ordinance and approved it, and directed his secretary to “sign” his name thereto, and the secretary did so under his immediate direction, it was “signed” by the mayor. The charter in this respect differs from the explicit language of section 37 of article 4 of the Constitution relating to the signature to be affixed by the presiding officers of the two houses to a bill passed by the Legislature.</p> <p>2. -: -: Proved by Clerk’s Seal. Where the ordinance . for the construction of a sewer was in due form and had been signed by the presiding officers of the two houses of the municipal assembly in accordance with the charter, and purported to be signed by the mayor in accordance therewith, and was authenticated by the city clerk under the seal of the city, the charter providing that an ordinance may be proved by the seal of the city, it would be a harsh ruling to hold that a contractor, under the ordinance, for a public improvement, must determine for himself the genuineness of the mayor’s signature.</p> <p>3. ADVERTISEMENT: Ten Successive Days: Sundays. Where the ordinance provided .that a notice of the letting of a contract for the construction of a sewer “shall be published for ten successive days in a newspaper doing the city printing,” and the paper which held the city printing contract was not published on Sundays, the tax bills are not- invalid because the advertisement for bids was not published on two Sundays, if it was printed in at least ten successive week-day issues of the paper. “Ten successive days” means publication on ten successive days when the paper can be published without the publisher running the risk of being indicted for a violation of the Sunday statute of this State.</p> <p>4. TAXBILLS: Sewer: Completion: Useless Basins. Where four catch-basins at the four corners of a certain street were not constructed as the contract required, and they were not built “because the street was not on grade,” and their cost was not included in the final estimate, and the contract provided that the engineer should decide all questions that might arise relative to the execution of the contract, and he directed that these four useless basins should be omitted, it cannot be held that the taxbills are void because the work was not completed.</p> <p>5. -: -: -: Embankment: Technical Departure. Where every foot of the sewer pipe, of the size required by the ordinance, was laid, and on the proper lines and grades, it will not be held that the sewer was not completed simply because the contractor,' under the direction of the engineer and inspector, instead of building an embankment of earth where the sewer was built above ground, one foot high and of a width equal to the full diameter of the pipe, over the pipe and its support, as the contract required, technically departed from its literal wording, and built a wall of masonry upon which to lay the pipe and laid the pipe in a bed prepared for it and then built the wall around and over it so as to protect it — this being necessary in order to' build the sewer upon the grade, and the result being a much safer protection to the pipe than would have been afforded by simply piling an embankment of earth over and around the pipe.</p> <p>6. -: -: -: Actual Value: Charter Provision. The charter of Kansas City is available to a landowner, where the public improvement has not been done in exact conformity to the terms of the contract, to take the initiative and bring a suit in equity and reduce the contractor’s recovery on the tax-bill to what the work is reasonably worth to the landowner, not exceeding the contract price, by tendering or offering in his bill to pay the actual value of the work done.</p> <p>7. -: Cancellation: Tender of Value. Before a court of equity will cancel a special taxbill for a public improvement or enjoin its collection on account of its being excessive, the landowner must tender the amount he conceives to be actually due and just; and unless he does that, instead- of simply asking that the taxbill be cancelled on the ground that the work was not completed, the court can make no deduction from the taxbills.</p>

— Hon. W. N. Evans, Judge. (1) When jurisdiction of the person is sought by constructive service of notice, the order of publication “must state briefly the object and general nature of the petition.” R. S. 1899, sec. 575.

Louis City Circuit Court. — Now. Daniel G. Taylor, Judge. (1) The court erred in giving instruction 1 at the instance of plaintiff. Mul derig v. Railroad, 116 Mo. App. 667; Allen v. Railroad, 183 Mo. 411. (2) The court erred in giving instruction 2 at the instance of plaintiff. Orcutt v. Century Building Co., 201 Mo. 424; Klebe v. Parker Distilling Co., 105 S. W. 1057; Rodan v. Railroad, 105 S. W. 1061; Turner v. Hoar, 114 Mo. 335.

— Hon. Wm. A. Davidson, Judge. (1) The notice of the railroad company posted at its station at Pacific forbidding trespassing upon its track or premises prevented any license arising from trespassing thereon. Frye v. Railroad, 200 Mo. 403; Koegel v. Railroad, 181 Mo. 396; Hyde v. Railroad, 110 Mo. 396; Pulley v. Railroad, 94 Iowa 567.

— Row. F. C. Johnston, Judge. (1) Defendant’s motion to strike out plaintiff’s amended petition should have been sustained. The pleading filed as an amended petition is a substitution of a new cause of action and it therefore should have been stricken out, and this court should review this error notwithstanding defendant thereafter filed an answer and the cause was tried on such amended petition.

— Hon. W. B. Teasdale, Judge. (1) The presumptions of law are in favor of honesty and fair dealing, and, when fraud is alleged, it must be proved by evidence clear and cogent, which overcomes these presumptions; and if the transaction comports as well with honesty and fair dealing, it should be referred to that motive. Bemecker v. Miller, 44 Mo. 102; Garesche v. MacDonald, 103 Mo. 1; Eidge v. Greenwell, 53 Mo. App. 479; Gordon v. Is-may, 55 Mo.

<p>Appeal from. Audrain Circuit Court.— Eon. H. W. Johnson, Judge.</p> <p>(1) These plaintiffs, the children of Mattie S. Collins, took a remainder in fee simple in said land. Secs. 4594 and 4645, R. S. 1899; Waddell v. Waddell, 99 Mo. 338; Brown v. Fulkerson, 125 Mo. 400; Muldrow v. White, 67 Mo. 470. (2) Plaintiffs, the children of Mattie S. Collins, the life tenant, were not only proper but necessary parties to the action in partition and the judgment entered is void as against them. Secs. 4376 and 4386, R. S. 1899; Wise v. Lisa, 34 Mo. 505; Dameron v. Jameson, 71 Mo. 97; Hiles v. Rule, 49 Mo. App. 628, 121 Mo. 248; Throckmorton v. Pence, 121 Mo. 50; Johnson v. Johnson, 170 Mo. 34; Estes v. Nell, 108 Mo. 172; Lilly y. Mecca, 126 Mo. 216; Becker v. Stroeher, 167 Mo. 306; Burnes’ Est. v. Ayr Lawn Co., 82 Mo. App. 66; Prewitt y. Warren, 87 Mo. App. 566<. (3) The defendant, Thomas W. Crawford; is estopped to deny that the interest of Mattie S. Collins and her children is other than an undivided one-eighth interest in the land. The petition in partition filed by this defendant with the others specifically states that the share of each plaintiff is an undivided one-eighth interest in said lands. The judgment in partition is in accord with that allegation and finds and adjudges the interest of this defendant, plaintiff in the partition action, to be an undivided one-eighth interest, and the one-eighth interest is set off to each of the parties and to Mattie S. Collins in the judgment. There is no claim in the petition for partition that this defendant held any interest in trust for his sister, Mrs. Collins. Defendant is concluded by the record he made in the partition suit. Rolf v. Timmermeister, 15 Mo. App. 249; Forder v. Davis, 38 Mo. 107; Bobb v. Graham, 89 Mo. 200; Estes v. Nell, 140 Mo1. 639; Ketchum v. Christman, 128 Mo. 38. The defendant is bound by his pleading, the judgment and the sheriff’s deed under the order of sale in the partition action, and is estopped to deny that he had any other interest in the land than the undivided one-eighth-interest individually, or that he attempted to or sold any trust estate of his sister. Pentz v. Kuester, 41 Mo. 447; Tates v. Johnson, 87 Mo. 213. (4) The sale under the proceedings in partition is the sale of the parties themselves and is as though it has been made by the conveyance of the parties thereto. Schwartz v. Dryden, 25 Mo. 576; Stewart v. Garvin, 33 Mo. 103; Pentz v. Kuester, supra. And operated only to convey the life estate of Mattie S. Collins. Freeman on Coten. and Part., sec. 416. (5) As against these plaintiffs the judgment of partition is void: (1) because not parties to the proceeding, and (2) because contrary to the will of Dr. J. H. Crawford. Sec. 4383, R. S. 1899; Ex parte Cubbage v. Franklin, 62 Mo. 364; Sikemeier v. Galvin, 124 Mo. 367; Lilly v. Menke, 126 Mo. 190; Stevens v. De La Yaulx, 166 Mo. 20; Stevens v. Larwill, 110 Mo. App. 140.</p> <p>(1) The trustee, T. W. Crawford, under the will was invested with the legal title to- the share of Mrs. Collins and her children and his trust was an active one and when T. W. Crawford and Mrs. Collins were made parties to the partition suit, the children of Mrs. Collins were not necessary parties to that partition suit. The contingent interest of the plaintiffs was represented in the person of T. W. Crawford, the trustee, in whom the legal title was vested by the provisions of the will. Temple v. Scott, 143 111. 200; American Bible Society v. Price, 115 111. 644; Green, v. Grant, 32 N. É. 369 ; 2 Underhill on Wills, sec. 781; Oxley Stave Co. v. Butler Co., 121 Mo. 637. (2) The decree ordered the sheriff to pay the proceeds of sale to the executors to pay the debts and distribute remainder under the order of the prohate court as provided in the will, which manner of distribution has been approved by our Supreme Court. Chrisman v. Divinia, 141 Mo. 129; Babb v. Ellis, 76 Mo. 459; secs. 4383 and 4384, E. S. 1899.</p>

— New. F. C. Johnston, Judge. (1) That the deed from Stephen D. Sutton to his five daughters named therein “and the heirs of their bodies, forever,” conveys, under our statute abolishing fee tails, a life estate to the grantees named with a remainder over to their respective children bom and to be born, is elementary law.

<p>1. JUDGMENT: Creditor’s Bill: Scope: Against Remaindermen. In a suit on a single creditor’s bill, to have a deed from a deceased grantor to bis five daughters and the heirs of their body set aside, as being in fraud of the rights of the grantor’s creditors, and brought against said daughters and all of their children then living, a judgment, in so far as it undertakes to divest the title of the life tenants (said daughters) and of the remaindermen (the heirs of their bodies), and to vest the same in the grantor’s widow and the general heirs at law of said grantor, is void and of no effect, and does not divest the title of the remaindermen made parties or others subsequently born.</p> <p>2. ADVERSE POSSESSION: Grantees of Life Tenants. Grantees of life tenants can no more contest the remaindermen’s title by adverse possession than could the life tenants themselves. Their possession, if adverse to an outstanding title, inures to the benefit of the remaindermen.</p> <p>3. -: -: Common Source: Outstanding Title. Where both plaintiffs and defendants claim through a common source, defendants as grantees of the life tenants in a deed from the common source as grantor, and plaintiffs as remaindermen under that deed, and defendants in addition claim under an outstanding title made long after the Statute of Limitations has run in favor of the. life tenants against the original grantee and source of the outstanding title and his heirs at law, there is no longer any foundation for a claim of an outstanding title; for the possession of the life tenants and their grantees inured to the benefit of the remaindermen, “the heirs of their bodies,” and that possession cannot be asserted by the grantees of the life tenants to destroy the remainder.</p>

Transferred from St. Lonis Court of Appeals. Both the courts of our State and Federal courts have repeatedly held that where goods are sold by sample or by canvassing in any way and orders are taken which are to be filled by a future delivery of goods not then in the State, but which are shipped in later, and nothing is delivered at the time of sale, then the defendant is not a peddler, and is not required to have a license.

Louis City Circuit Court. — Hon. Geo. H. Williams, Judge. (1) The instructions given by the court cover all the questions of law arising in the case which were necessary for the information of the jury in giving their verdict, presenting the case in all of its features fairly, and were sufficient under the law. State v. Smith, 190 Mo, 727.

Transferred from St. Louis Court of Appeals. (1) The motion to qnash and demurrer to the information should have been sustained, (a) The first count of the information does not state facts sufficient to constitute an offense, (b) Section 3011, Revised Statutes 1899, is unconstitutional, being in conflict with section 53, article 4, also section 30, article 2, Constitution of Missouri; also section 1, 14th amendment, Constitution of the United States.

— lion. W. N. Evans, Judge. (1) Under the testimony in this case it is undisputed that defendant reserved the right to pass through the lot at deceased’s house in going to and from the field to his corn that he was cultivating. He also reserved the right to use the barn or stables in said lot. That being so, the court should have given the instruction.

Louis City Circuit Court. — How. Hitgo Muench, Judge. (1) The State wholly failed to show that John Scott of 109 South Twentieth street was a duly qualified elector of the sixth precinct of the Fourteenth ward.

' — Son. Argus Cox, Judge. (1) Defendant made objection to some of tbe evidence for tbe State, but bis objections were overruled. (a) Defendant objected to tbe examination of tbe prosecuting witness, because some of the questions asked were leading. But all tbe authorities bold that tbe asking of such questions is a matter within tbe discretion óf tbe trial court. State v. Bateman, 198 Mo. 222; State v. Woodward, 191 Mo. 632; State v. 'Whalen, 148 Mo. 290.

— Ron. B. G. Thurmcm, Judge. The statutes under which this prosecution was had are unconstitutional and void. They make it a criminal offense for dealers in some goods, wares and merchandise to go about from place to place to sell the same without a peddler’s license.

— How. Jos. J. Williams, Judge. (1) The jury by their verdict found the defendant guilty of murder in the second degree, which was sufficient. If it he held that the jury failed to declare the punishment, then, in such case, it was the statutory duty of the court to assess and declare the punishment and render judgment accordingly. R. S. 1899, sec. 2649; State v. King, 194 Mo. 484; State v. Van Wye, 136 Mo. 243.

Louis City Circuit Court. — Ron. Daniel D. Fisher, Judge, (1) The information is insufficient in that it fails to charge defendant with taking away from her father Florence Hamann. State v. Adams, 179 Mo. 341. (2) It was error to admit, over the objection of defendant, the statement of William Hamann, the father of the prosecuting witness, to the effect that he did not give his consent to his daughter’s going away with defendant.

Louis City Circuit Court. — How. Matt. G. Reynolds, Judge. The information is sufficient. R. S. 1899, sec. 1849; Kelley’s Criminal Law, sec. 580; State v. Freeman, 21 Mo. 480. There being no error in the record, an affirmance of the judgment is asked.

Transferred from Kansas City Court of Appeals. In order to convict, the prosecution was bound to prove that the accused was present at the time and place of the alleged shooting. State v. Taylor, 118 Mo. 153; State v. Howell, 100 Mo. 28; State v. Wollard, 111 Mo. 248; State v. Lewis, 69 Mo. 92; 1 Bish.,'Crim.Pro. (3 Ed.), sec. 1062; WBarton, Crim. Ev., sec. 333.

— Hon. Louis Hoffman, Judge. (1) The information is sufficient. R. S. 1899, sec. 1898; Kelley’s Criminal Law, sec. 642, p. 428. (2) The purported bill of exceptions is not signed1 by the trial judge, and there is nothing before the court but the record proper. State v. Collins, 196 Mo. 87; State v. Briscoe, 135 Mo. 660. (3) The record proper does not show that the bill of exceptions was filed, and the bill cannot be considered. State v. Wilson, 44 Mo.

Transferred from the St. Louis Court of Appeals. (1) The court erred in refusing appellant’s offered instruction on circumstantial evidence, as in this case all the evidence was circumstantial. State v. Moxley, 102 Mo. 347; State v. Woolard, 111 Mo. 248. And although the offered instruction was not properly worded, the court should have given a correct instruction on the point raised thereby.

— How. D. H. Eby, Judge. There is no hill of exceptions in this case. Monroe county is in the Tenth Judicial Circuit. The courts in this circuit are held in said county on the second Monday in April (April 9, 1906); fourth Monday in August (August 27, 1906), and the second Monday in December (December 10, 1906). Laws 1905, p. 119; Tt. S. 1899, sec. 1728.

— Hon. C. A. Denton, Judge. (1) The indictment is sufficient. R. S. 1899, secs. 2033, 2039; State v. Faulkner, 175 Mo. 546; State v. Huckley,- 87 Mo. 414; Joyce on Indictments, p. 781. (2) It is.not .essential that the false statement tend directly to prove the issue.

— Hem. L. B. Wood-side, Judge. (1) The information is substantially in the language of the statute defining the offense; it fully informs defendant of the nature and cause of the accusation against him, and is sufficient. It is true that the information does not allege the value of the money, but when money itself is the subject of larceny its value need not be alleged or proved.

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) The indictment does not state an offense. The allegations in the indictment are that the accused testified that he did not believe, or did not recall, etc., but of these there is no negation. There is no averment that the accused did believe, or did recall. State v. Faulkner, 175 Mo. 600. .(2) The exclusion of the evidence as to the possible want of memory on the part of the appellant was inexcusable error.

— How. Argus Cox, Judge. Transferred to Kansas City Court of Appeals. The constitutionality of the local option law has been many times sustained by this court. State v. Handler, 178 Mo. 38; State v. Dugan, 110 Mo. 138; State v. Watts, 111 Mo. 553 ; State v. Searcy, 111 Mo. 236.

Louis City Circuit Court. — Ho». Moses N. Sale, Judge. (1) Since tbe power of tbe court to require tbe defendant to give bail for bis appearance rested solely upon the pending information, then necessarily so soon as tbe court lost its power to try him upon said information tbe bail bond given for that purpose became ineffective and without any vitality. Tbe moment tbe information was without life, the bond to answer to it was also without life.

— Eon. Wm. N. Evans, Judge. The information being filed and the trial had after the Act of 1905 went into effect, appellant could not be prosecuted under section 7456 nor convicted under section 7464, for the reason that said section 7464, which prescribes the punishment for the offense with which appellant was charged, had been superseded, abrogated and repealed by section 29 of tbe Act of 1905.

' Appeal from St. Louis City Circuit Court. — Ho». Hugo Muench, Judge. The main contention in this case is that there is no evidence of any character to show that the person named in the information, John Hnppert, had ever lost anything- by violence to his person or by putting him in bodily fear. The statements which are alleged to have been made by the defendants to some other persons do not show that a robbery was committed.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The indictment charges that the defendants named assaulted T. P. Hoxey and did feloniously attempt to rob, steal, take and carry away the money and personal property of the said Hoxey, etc., with the intent then and there to deprive the owner of the use thereof and to convert the same to their own use, but wholly fails to charge an intent to deprive the owner of the use thereof without his consent, an essential element…

<p>1. PRELIMINARY HEARING. If the statute requiring a preliminary examination before a justice of the peace had not taken effect at the time the information was filed in the circuit court, the information should not be quashed for that no such preliminary examination was had.</p> <p>2. -: Bound to Prosecute by Indictment. Because a preliminary examination is held before a justice of the peace and the defendant is bound over to "answer the charge before the court in which the same is cognizable,” the State is not precluded from proceeding under an information filed in the circuit court. The statute does not. require the justice to hold the accused for the action of the grand jury. Because a grand jury is thereafter held, the State is not bound, after the filing of an information and an examination before a justice of the peace, to proceed by an indictment,</p> <p>3. ASSAULT: Instruction: Shooting in Arm: Intent to Kill. It is not error to refuse to instruct the jury that if ■ defendant shot another in the arm the law presumes that he did not intend to kill him. It does not follow that, because defendant shot at the other with a deadly weapon and hit him in the arm, he did not intend to kill him, but only to wound him.</p> <p>4. REMARKS OF COUNSEL. Unless the appellant saves an exception to the court’s disapproval of the remarks of the State’s attorney to the jury, as not being a sufficiently severe rebuke, he cannot on appeal complain of the failure of the court in that respect.</p> <p>5. -: Prejudicial. In order to justify a reversal of the judgment on account of improper remarks by the prosecuting attorney, it should appear that the remarks were prejudicial to appellant; that is, that they influenced the verdict of the jury.</p>

Francois Circuit Court.1 — Hon. G. A. Killian, Judge. (1) Defendants Darby and Hobson having purchased the property, pending the appeal, are bound by the decision heretofore rendered in this case. O’Reilly v. Nicholson, 45 Mo. 160; Becker v. Stroeher, 167 Mo. 306; Burnham v. Smith, 82 Mo. App. 47; Bridge Co. v. Stone, 174 Mo. 35; Holloway v. Holloway, 103 Mo. 283; Hart v. Steedman, 98 Mo. 452; Turner v. Babb, 60 Mo. 342; Mcllworth v. Hollander, 73 Mo. 112.

<p>On Motion to Transfer to Kansas City Court of Appeals.</p>

— Hon. C. A. Benton, Judge. (1) Township taxes levied in counties which have adopted township organization are taxes for county purposes within the meaning’ of the Constitution and all county taxes including the township taxes cannot exceed forty cents on the one hundred dollars valuation. State ex rel. v. Railroad, 123 Mo. 72; State ex rel. v. Railroad, 145 Mo. 596.

Louis City Circuit Court. — lion. O’Neill Ryan, Judge. (1) The petition fails to allege facts sufficient to constitute a cause of action. The cause of action is alleged in one clause of a sentence. The cause of action as alleged is as follows: “The defendant by shooting into a crowd of people negligently shot the plaintiff.” There is no allegation that he improperly or negligently or carelessly or illegally, or improperly or wrongfully shot into a crowd of people.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) As this is an equity case, the Supreme Court will consider the evidence and make its own decision, irrespective of the trial court’¡3 finding. St. Francis Mill Co. v. Sugg, 104 S. W. 45; Bates County Bank v. Gailey, 177 Mo. 181.

— No». Wm. G. Ellison, Judge. (1) The burden of proof was on plaintiff to establish the facts of the non-delivery of the deed, and the non-payment of the consideration expressed in the deed, by evidence so cogent, clear and convincing as to leave no reasonable doubt in the mind of the chancellor. This is the rule whenever it is sought to deprive one party of a vested estate, and vest the same in another.

<p>Appeal from St. Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge.</p>

— Hon. A. D. Burnes, Judge. (1) The court erred in permitting conversation to he introduced in evidence of John B. Thompson concerning the boundary lines of his wife’s farm in her absence. These conversations were prejudicial and improper. The conversation of third parties of tlie husband concerning the title of his wife’s land or the possession thereof are never admissible against the wife in a suit for the possession of her lands.

— Row. Jas. T. Neville, Judge. (1) 1. A demurrer to the evidence admits every fact put in evidence by the opposing’ party and every reasonable inference from every such fact. Lynch v. Railroad (Mo.), 106 S. W. 74. 2. Under the pleadings in this cause there is but one issue, which is, “Did the deceased voluntarily bring his death upon himself?” State ex inf. v. Delmar Jockey Club (Mo. Sup.), 98 S. W. 539.. 3.

— flow. J. W. Alexander, Judge. (1) The evidence was abundant to establish defendant’s failure to comply with the provisions of section 1102, Revised Statutes 1899. This made a primafacie case against defendant requiring the submission thereof to the jury even if deceased had been an adult instead of a thirteen-year-old child. Huckshold v. Railroad, 90 Mo. 548; Crumpley v. Railroad, 111 Mo. 152; Lane v. Railroad, 132 Mo. 4; Atterbury v. Railroad, 110 Mo.

- — Hon. P. G. Stepp, Judge. (1) A common carrier may, by reason of special ■or reduced rate, limit its common law liability. Oxley v. Railroad, 65 Mo. 629 ; Rice v. Railroad, 63 Mo. 314; Ketchum v. Express Co., 52 Mo. 390; Railroad v. Cleary, 77 Mo. 634; Read v. Railroad, 60 Mo. 199 Smith v. Railroad, 112 Mo. App. 610. The recitals of a contract of such reduced rate are prima-facie evidence of the truth of such recitals.

— Hon. Jas. D. Barnett, Judge. At the trial below appellants did not prove that the car doing the mischief to the plaintiffs’ son was operated by this respondent. Appellate courts from •time to time have held that very slight evidence as to ownership' is all that is necessary, but under the most liberal construction of appellate practice there must be some evidence, be it ever so vague and slight.

Transferred’from St. Louis Court of Appeals. (1) The House of Delegates had the power, hy means of a committee, to make the investigation which resulted in the employment of relator. Charter, art. 3, see. 31; In re Dunn, 9 Mo. App. 255; sec. 1314 * Rev. Mun. Code City of St. Louis, 1901.

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

— Eon. W. N. Evans, Judge. (1) Y^e are aware of the attitude this court has taken in turntable cases, and that it is negligence per se to leave a turntable unlocked or unguarded, for the reason that the' same was attractive to children to go upon and play, and also the Supreme Court of the United States has in one ease ruled the same way. The doctrine, though, as this Court has remarked heretofore, has been very much modified in most of the States and also in this State.

— Eon. Wm. G. Ellison, Judge. (1) The petitioner’s application for the private way is insufficient and does not contain a statement of facts authorizing the court to exercise jurisdiction.

<p>APPEAL: Dismissal: Insufficient Abstract. However insufficient the abstract may be in other respects, if the petition, answer and reply are properly abstracted, and a certified copy of the judgment and order of appeal is in the office o'f the clerk of the appellate court, which is before the court and accessible, that much of the record proper is reviewable on appeal, and the appellant is entitled to have the appellate court determine whether or not the judgment is one that can be permitted to stand on the face of the pleadings, and the appeal will not be dismissed, but, there being no error in the record proper, the judgment will be affirmed.</p>

Louis City Circuit Court.— Hon. Jesse A. McDonald,' Judge. (1) The court erred in overruling defendant’s demurrer to plaintiff’s evidence. That evidence failed to establish that defendant in making the landings complained of, used the public wharf of the city of St. Louis. Indeed, that evidence affirmatively established that the city had no wharf when said landings were made, but that said wharf was entirely covered by the flood waters of the Mississippi river.

— Now. Samuel Davis, Special Judge. The trial court erred in declaring as a matter of law that under the evidence relator was not entitled to recover, and in rendering its finding for defendant.

— New. H. G. Riley, Judge. (1) The court said, iu the case of Wicker sham v. Woodheck, 57 Mo. 59, that the registrar’s and receiver’s receipt is evidence that the State has passed the title, although the formality of a patent is wanting. The equitable title is at least passed, for the purchase money is paid, and the State cannot transfer its title, which is a mere naked legal title, to another.

<p>Appeal from St. Louis City Circuit Court. — No». Daniel D. Fisher, Judge.</p> <p>Transferred to St. Louis Court of Appeals.</p>

— Ho». Samuel Davis, Special Judge. (1) Appellant’s abstract of record proper does not show an affidavit for appeal in tbis cause, or state tbe substance of sucb an affidavit; and tbis court is without jurisdiction to bear and determine tbis cause. Such requirements of tbe record proper can not be shown by recitals in tbe bill of exceptions. Tbe burden is on appellant to show jurisdiction in tbis court of tbis cause. Ins. Co. v. Hurst, 129' Mo.

<p>Appeal from Ripley Circnit Court. — lion. Samuel Davis, Special Judge.</p>

— Son. N. M. Bradley, Judge. (1) The court erred in overruling the motion to quash the information. . First: Because the right of preliminary examination had not been accorded defendant. R. S. 1899, sec. 2476a, Laws 1905, p. 133. Second: Because the information does not charge defendant with the commission of any ¡crime whatever above manslaughter. Third: Because the information is not verified1 as required by law.