Volume 216 — Missouri Reports

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. (1) The petition does not state a cause of action and is insufficient to support the judgment, for that, while it counts upon alleged acts of negligence of the motorman “whilst operating the street car,” under section 2864, Revised Statutes 1899', instead of praying for the penalty provided by that section, its prayer is for compensatory damages, under sections 2865 and 2866, Revised Statutes 1899.

U. M. Ramey, Judge. (1) Upon the facts the conveyance was fraudulent as a matter of law, regardless of the intention of the parties.

<p>1. EDUCATIONAL CORPORATION: Creation of Separate Corporation: Museum of Fine Arts. Washington University, itself a creature of statute, had no power to create another corporation, namely, the Board of Control of the School and Museum of Fine Arts, nor did it attempt, by its ordinance of May 22, 1879, to make said Board of Control a separate corporation, but the purpose of that ordinance was to establish an agency of the University to manage and control the art department in the University, and to avail itself of the endowment created by Wayman Crow and other charitable benefactors of the art museum.</p> <p>2. PRIVATE CORPORATION: Changed to Municipal .Institution: Art Museum. A city ordinance whose title is, “An ordinance authorizing the erection in Forest Park of a building devoted to the purpose of art education,” and whose first section reads, “The Board of Control of the St. Louis School and Museum of Fine Arts, a department of Washington University, aré hereby authorized to erect within Forest Park in this city* a building which, together with the site upon which it is located, shall be devoted to the use of this institution forever for the exhibition of pictures and sculpture and such other means as are usual in such institutions for the education of the public in art,” did not change the Board of Control, which at the time was an agency of Washington University, a private corporation, into a public municipal institution of the city, nor render it independent of ' the University. The ordinance, recognizing the existence of a department of art in the University, expressed a permit to the University to erect a building in Forest Park to be used as an art museum, but did not endow the Board of Control with corporate powers not already possessed by it.</p> <p>3. -: -: -: Aided by City Officers as Directors. Nor did the fact that the ordinance augmented the Board of Control of the Art Museum by the Mayor, Comptroller and Parle Commissioner, change the Board of Control from a private administrative agency into a public municipal body. The addition of those officers to the Board of Control did not have the effect of changing the charter and by-laws of the University or the by-laws of the Board of Control adopted under the powers granted to it as an agency of the University.</p> <p>4. -: -: -: Estoppel. Nor can a new corporate or public municipal institution be deduced, by way of estoppel, from the fact that the city ordinance permits the erection of a building in Forest Park, which, when erected, is to be the property of the city, and from; a subsequent .submission to and approval by the voters of the city of a proposition to levy a tax sufficient to support the art museum in pursuance of a statute authorizing the city to levy the tax.</p> <p>5. -: -: By Legislative Act. A legislative act which places an art museum under the control of an administrative board created as an agency of a university to administer its art department and fund, and continues said board with power of self-preservation, and vests in said private board power to receive taxes and expend them without liability to the city authorities for their propfer disposition, and withholds from the city’s corporate authorities power to regulate and control the art museum, does not make of said board a separate legal entity distinct from the University which had created the board in the first instance and which under its organization has retained control over it, even though the people vote the tax contemplated by the act for the support of the museum.</p> <p>6. -: -: Right to Demand Taxes: Public Purpose. A board of control of a school and museum of fine arts, which has been established by a university as its agency to administer a fund created by private benefactions, and which is not a corporate body or legal entity in and of itself, and does not constitute one of the municipal institutions of the city, cannot ' demand of the city moneys levied and collected as taxes, which were levied after the voters at a special election had approved of the legislative plan to levy and set apart a certain tax for the support and maintenance of said art museum, nor has it the right to disburse and expend said moneys on its own vouchers. The Constitution says that “taxes may be levied and collected for a public purpose only,” and taxes which are to be turned over to a private corporation to be spent by its board upon its vouchers, are not levied or collected for a public purpose, though its board uses them wholly to supply and maintain a museum of fine arts open and free to the public.</p> <p>7. TAXATION: Disbursement: Public Officers. The Constitution means that taxes when collected are to be administered and disbursed only by public officers elected or appointed according to law, whose accounts may be from time to time investigated by the lawful authorities.</p> <p>8. -: -: -: Municipal Taxes: For Private Corporation. The Constitution also means that municipal corporations are authorized to levy and collect taxes for municipal purposes only, and that municipal enterprises are to be conducted and controlled in fact by such municipalities by and through their proper officers, and that no municipality is authorized to exact taxes and turn them over to a private individual or to a board of a private corporation to be disbursed at their discretion.</p> <p>9. -: -: Power of Legislature: Aid to Corporation. Under section 46 of article 4 of the Constitution of 1875, the oeneral Assembly has no power to authorize any city to lend its credit or grant public money or thing of value in aid of or to any individual, association or corporation whatsoever, whether it be a public or a private corporation.</p> <p>10. OFFICERS: Appointed by Legislature. The Legislature has no power to both create an office and appoint the officer itself, or designate what persons shall be appointed. The Legislature had no authority to both constitute the Board of Control of the St. Louis School and Museum of Fine Arts a separate municipal legal body, and to name the individuals then constituting said board as its first officers. ■</p>

<p>1. APPEAL: Tort: New Trial Granted: Abatement. In an action for tort, wherein plaintiff recovered a verdict and judgment for damages for the negligent killing of her husband, and the trial court on defendant’s motion granted a new trial and an arrest of the judgment, and from those orders plaintiff appealed but died before the cause came on for hearing in the appellate court, her action abated, and cannot be revived in this or any other court by the substitution of her administrator or executor as the plaintiff.</p> <p>2. -: -: Abatement After Verdict: Section 762, R. S. 1899. Section 762, Revised Statutes 1899, providing that “after verdict shall be rendered in any action, and after an answer of confession in any suit brought, if either party die before judgment be actually entered thereon, the court may, within one term after such verdict or answer, enter final judgment in the name of the original parties,” does not apply to a case where, after a verdict has been returned against defendant and a judgment rendered, motions for a new trial and in arrest have been filed and sustained, and thereafter the plaintiff dies. The word “verdict” therein refers to a verdict in which no judgment has been entered in'the trial court.</p> <p>3. -: -: -: Act of 1891. Nor does the Act of 1891, granting to either party the right of an appeal from an order granting a new trial, change the situation. It does not mean that, if plaintiff dies after he recovers a verdict and judgment and a new trial is granted, the cause of action may be revived in the name of his administrator or executor. In the nature of things there is no adjudication after a new trial granted in the suit for tort, and no property rights have descended to the plaintiff’s legal representative.</p>

— Hon. N. M. Bradley, Judge. The allowance of interest on the award, from its date, was necessary to complete plaintiffs’ just compensation for the property taken. The jury found that they were entitled to that amount on that date; when the compensation was withheld for four years, there should have heen added additional compensation, which is ascertained by calculating interest on the award from its date.

— Eon. L. B. Woodside, Judge. (1) A deed delivered without the consent of the grantor has no more effect to pass title than if it were a forgery, or had been stolen. Houston L. & T. Co. v. Hubbard, 85 S. W. 474. (2) Where a deed is delivered as an escrow, it is of no force till the condition is performed. G-off v. Roberts, 72 Mo. 572.

— Eon. John G. Park, Judge. (1) The court erred in not giving defendant’s instruction in the nature of a demurrer to the evidence offered at the close of plaintiff’s case and renewed at the conclusion of all the evidence.

— Hon. John P. Butler, Judge. (1) It is a presumption of law that, where one purchases property and pays for it and causes it to he deeded to a child or grandchild, he intended it as a gift or advancement. Perry on Trusts (5 Ed.), secs. 143, 144, 145; Curd v. Brown, 148 Mo. 82.

— If ore John G. Park, Judge. (1) The court erred in not instructing the jury to find the issues in favor of defendant and in submitting the case to the jury. Yarnell v. Eailroad, 113 Mo. 580; G-rout v. Eailroad, 125 Mo.'App. 552; Masterson v. Eailroad, 204 Mo. 519; Eppstein v. Eailroad, 197 Mo. 733; Markowitz v. Eailroad, 186 Mo. 359.

— Hon. D. H. Eby, Judge. (1) Defendants make a collateral attack on the judgment. Lovett v. Russell, 138 Mo. 477.

<p>1. DRAINAGE DISTRICT: Assessment: Set-Off: Appropriation of Existing Levee. The value of an existing levee, belonging to a landowner and appropriated by the drainage district, cannot be set off and credited on the benefit assessment assessed against him, when he is sued by the county collector for the amount of the delinquent assessment. The collector has no interest in the taxes and can sue only as a trustee for the true owners, who, in reality, are the persons who performed the labor and furnished the materials that went into the levees and ditches.</p> <p>2. -: -: -: -: Under Agreement. An answer, to the collector’s suit to collect a delinquent benefit assessment assessed against a landowner of the legally incorporated drainage district, which pleads that he had at his own expense constructed a levee that fully protected his lands from overflow, and that the promoters of the new drainage district agreed with him that if he would sign the petition therefor they would allow him upon the benefits assessed against his lands for the construction of the new and larger levee the reasonable value of the old levee appropriated by the district, and that the commissioners made use of the old levee and being informed of the agreement ratified it and promised to ascertain such value and credit him with the amount thereon on assessments against his land, does not state a defense, and was properly stricken out.</p>

<p>1. TAXES: Return of Delinquency: Limitations. It is not a prerequisite step to the bringing of a suit for back taxes (or delinquent benefit assessments levied by a drainage district), that the taxes be returned and certified as delinquent. If the levy was properly made and the taxes have not been paid, the suit can be maintained at any time within'five years after the date upon which the taxes should have been returned delinquent, whether actually returned delinquent or not.</p> <p>‘ 2. -: -: Prima-Facie Case. If the suit is brought after the date upon which the taxes should have been returned delinquent, the only effect a failure to so return them has upon the suit is to destroy the taxbill as prima-facie evidence that the taxes are past due and payable. It does not impair the lien or the right of the State to collect the taxes by suit.</p>

— Hon. Hermann Brumback, Judge. (1) The court erred in refusing defendant’s instruction in the nature of a demurrer to the evidence requested at the close of plaintiff’s case and renewed at the conclusion of all the evidence.

<p>1. ABSTRACT: Record Facts. It is unnecessary to set out in the abstract record, facts in literal copy, but it is sufficient and preferable to set them out in abbreviated narrative form. When so stated they are to be taken as conclusively true, unless brought into question by a counter abstract.</p> <p>2. -: -: Affidavit. A recital in the abstract that “said defendant filed its application and affidavit for an appeal from said judgment, which application . . . was allowed and said appeal granted” sufficiently shows that an affidavit was filed.</p> <p>3. APPEAL: Affidavit: Jurisdiction of Appellate Court. Conceding that the circuit court has no jurisdiction to grant an appeal unless the statutory affidavit is filed, it does not follow that the order granting the appeal is to he treated in the appellate court as void because the affidavit does not appear in the record, in the face of the fact that the order of the circuit court says on its face that an affidavit for an appeal was filed.</p> <p>4. -: -: -: Insufficient Abstract: Collateral Attack: Certiorari. Insufficiency in an abstract may justify an appellate court in dismissing an appeal, but cannot rob it of its jurisdiction if there is otherwise sufficient in the record on file to give it jurisdiction. If the appellate court has jurisdiction of the cause, it has jurisdiction to pass upon the sufficiency of the abstract, and even if its Judgment on that question is wrong it is only error. Neither its judgment on that point nor its judgment on the merits is open to collateral attack. The Supreme Court cannot, in a cause brought to it on a writ' of certiorari, quash the record of a Court of Appeals if it had jurisdiction of the cause, on the ground that there is error in its judgment.</p> <p>5. JURISDICTION: Circuit Court: Presumption of Regularity: Affidavit for Appeal. A circuit court is a court of general jurisdiction, and whenever its act is drawn in question it is supported hy a strong presumption of its regularity. And that presumption prevails to sustain its jurisdiction to perform any act which the statute imposes upon it. So that where the record recites: “Now comes the defendant and flies affidavit for appeal in this cause and the same being by the court examined and deemed sufficient an appeal is granted in this case,” the presumption is, nothing to the contrary being shown, not only that the affidavit was filed, but that it was in substantial statutory form.</p> <p>•6. APPELLATE JURISDICTION: How Determined. Sometimes it may be determined from the short transcript (the certified copy of the judgment and order of appeal) whether the Court of Appeals or the Supreme Court has jurisdiction; but cases often arise where the jurisdiction is to be determined from the abstract. For instance, if the appeal was from a monetary judgment of less than $4,500, the short transcript would indicate that the appeal was to the Court of Appeals, but the abstract might reveal that a constitutional question was involved, in which case the appeal would be to the Supreme Court.</p>

<p>Appeal from St. Louis City Circuit Court. — Ho». John A. Blevins, Judge.</p>

— Hon. J. G. Sheppard, Judge. Defendant was a competent witness in his own behalf and had the right to have his testimony considered by the jury, and the authority given the jury in the State’s instruction 5 to render a verdict without considering defendant’s testimony was error. State v. Austin, 113 Mo. 539; State v. Sanders, 106 Mo. 196. (1) The information is sufficient in form and substance. State v. Vandenburg, 159 Mo. 230.

<p>1. RECOGNIZANCE: No Bill of Exceptions. Where appellants entered into a recognizance for the presence of the principal at court, and on his failure to appear the recognizance was forfeited, and scire facias issued, and judgment according to law for the amount of the penalty was entered, and the record proper is free from error, and there is no bill of exceptions, the judgment will be affirmed.</p> <p>2. -: Appellate Jurisdiction. From a judgment on a recognizance for $500, in a felony case, the appeal is to the Supreme Court.</p>

<p>RECOGNIZANCE: No Bill of Exceptions. Where the appellants entered into a recognizance for the appearance of the principal at court, and, upon his failure to appear, the recognizance was forfeited, and scire facias issued, and the sureties were served with process, hut not the principal, and the proceeding was dismissed as to him, and upon the answer of the sureties, Judgment was entered against them, for the amount of the pen- . alty, and they appeal, hut file no hill of exceptions, the record proper being according to law and free from error, the Judgment will be affirmed.</p>

Louis City Circuit Court. — Hon. Geo. H. Williams, Judge. The court erred in overruling appellant’s objection to any further evidence under the information and in overruling appellant’s demurrers to the evidence. The information specifically described the property alleged to have been stolen from the' Standard Smelting Company, and afterwards received by appellant, as ten bars of new copper metal.

— Hoto. Hugh Dabbs, Judge. There is no bill of exceptions in this case, and hence no matter of exception can be considered on this appeal. There is a certain transcript bearing the certificate of the clerk of the circuit court of Jasper county on file with the clerk of this court, but the matters embraced within said transcript, while apparently matters of record and matters of exception, are thrown together in chronological order, without reference to their character.

— Son. Francis S. Trimble, Judge. (1) Instruction 5, given for the State, is wrong. It places the burden of proof on defendant to show that Inez Walkup killed herself of her own volition and not under the influence of his advice, counsel or assistance. It was the duty of the State to prove •beyond a reasonable doubt that defendant was deliberately. present assisting, counseling and advising her to commit suicide. The burden does not shift to defendant.

— Hon. Henry C. Riley, Judge. (1) The information is unobjectionable. State v. Neal, 178 Mo. 69; State v. Payne, 194 Mo. 451. (2) There is no bill of exceptions in the case. No record entry showing the filing and no “certificate on the bill itself” appears in the transcript. Without one or both of these the bill is a nullity. A mere recitation by the clerk in the transcript that the bill was filed is not sufficient.

— Hon. Henry C. Riley, Judge. (1) The court erred in failing to instruct on all of the law in the case in this respect, among others, that though defendants were jointly indicted and jointly tried, yet the court did not instruct the jury that they might find one or both the defendants guilty, or acquit one or both of them as they might find the facts to be.

— Eon. Jos. J. Williams, Judge. (1) (a) The indictment substantially charges every essential element of the offense of murder in the first degree. It fully informed defendant of the nature and cause of the accusation against him, and is sufficient. State v. Horn, 204 Mo. 528; State v. Richardson, 194 Mo. 329. (b) In charging murder it is not necessary to allege that the weapon was deadly and dangerous. State v. Hottman, 196 Mo. 122.

<p>APPELLATE JURISDICTION: Local Option Law: Constitutionality. The present Local Option Law has been declared to be constitutional so often that its constitutionality is no longer a debatable question. The appeal from a judgment convicting defendant of a violation of said law, is, therefore, not to the Supreme Court, but to the proper Court of Appeals, if the alleged unconstitutionality of that law is the only ground upon which the Supreme Court could take jurisdiction.</p>

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The information fails to allege facts sufficient to constitute the offense denounced by Sec. 1834, R. S. 1899. No facts are alleged. The only fact alleged in the information is that the automobile operated by defendant struck Christine Musick, and that death resulted from her injuries. No specific acts done or omitted by defendant from which culpable negligence could be inferred are alleged in the information.

Louis City Circuit Court. — Hon. Geo. II. Williams, Judge. . (1) The indictment is fatally defective: 1st, because it failed to allege the manner of the breaking. Conner v. State, 14 Mo. 561; State v. Henley, 30 Mo. 509; State v. Yandle, 166 Mo. 589. 2d, because it fails to allege that defendant intended to permanently deprive the owner of the use of his property without his consent.

— Ho». Wm. H. Wallace, Judge. (1) The information is sufficient in form and substance. R. S. 1899, sec. 1886; State v. Watson, 141 Mo. 338. It is well settled that burglary and larceny are two distinct offenses, that the two may be united in the same count, and that the jury may convict of either. R. S. 1899, sec. 1891; State v. Howard, 203 Mo. 600; State v. Owens, 79 Mo. 623; State v. Helms, 179 Mo. 280.

— Ho». Won. H. Martin, Judge. The instruction is palpably erroneous. Under it, all that the jury had to find in order to convict defendant was that he understood that his brother intended “merely to whip said Jeffress,” and that he went along to aid his brother in whipping Jeffress if it became necessary for him to lend his aid. This does not constitute manslaughter in the fourth degree, nor in any degree.

— Hon. G. A. Denton, Judge. (1) The court erred in overruling the plea in abatement to the indictment, (a) It stands admitted by the answer to the plea that a stenographer, who was not a member of the grand jury, was present in the grand- jury room, by the express direction of the court, and at the request of the prosecuting attorney and the grand jury, and took notes in shorthand of the testimony of the witnesses then being examined in reference to the charge against the…

— Son. N. M. Bradley, Special Judge. (1) The verdict of the jury ought to he set aside, •because it is so palpably wrong and against the evidence as to indicate that the jury were actuated by prejudice against defendant and his defense of insanity, (a) Because the evidence produced by the State in relation to the homicidal act of defendant under the circumstances and his conduct following that act in connection with his encounter with Dr. McNay in the street of Pacific was…

Louis City Circuit Court. — Hon. Hugo, Muench, Judge. (1) The indictment in form and substance is sufficient to charge the crime of perjury. R. S. 1899, secs. 2033, 2039; State v. Huckeley, 87 Mo. 414; State v. Powers, 136 Mo. 196; State v. Nelson, 146 Mo. 256. (2) The demurrer to defendant’s plea in abatement to the indictment was properly sustained.

— Eon. R. 8. Ryors, Judge. (1) That it is such negligence for one to attempt to cross or go upon a railway track at a public crossing, or elsewhere, without looking and listening for an approaching train, as precludes a recovery for an injury sustained by him from a passing train or locomotive, whether the company’s negligence also contributed directly to produce the injury-or not, has so often been decided by this court that it is now regarded as the settled law of this…

— No». G. W. Wanamaker, Judge. (1) It was the duty of defendants to construct guards around the belts and other machinery to protect their employees while operating the same, and their failure to do so rendered them liable for the damages resulting from such neglect and failure. R. S. 1899, sec. 6433; Colliott v. Am. Mfg. Co., 71 Mo. App. 170 ; Blair v. Heibel, 103 Mo. App. 633; Stafford v. Adams, 113 Mo. App. 721; Morgan v. Hinge Mfg. Co., 120 Mo.

— Hon. John G. Park, Judge. (1) The court erred in submitting to the jury the issue of actual knowledge by the Telephone Company of the existence of the break in the wire, which issue was wholly unsupported by proof. Wojtylak v. Coal Co., 188 Mo. 260; American Storage Co. v. Railroad,, 120 Mo. App. 410; Chambers v. Railroad, 111 Mo. App. 609; Ward v. Transfer & Storage Co., 119 Mo. App. 83.

Louis County Circuit Court. — Hon. Jno. W. McEVhinney, Judge. (1) The statutes in question in this case from the first enactment are as follows: Laws 1874, p: 151; R. S. 1879, sec. 7023; Laws 1887, p. 259; R. S. 1889, see. 7972; R. S. 1899', sec. 9742. (2) Certiorari is a direct attack and will reacli defects which could not be reached in any collateral proceeding. State v. County Court, 66 Mo. App: 1001; State v. Neosho', 57 Mo. App. 198; Railroad v. Young, 96 Mo. 43.

— Hon. A. D. Burnes, Judge. (1) Plaintiff bas an inchoate right of dower as well also as the homestead right in the ten acres in question; either of which would entitle her to the relief prayed, or such relief as would be just and proper in the premises necessary to protect either of these interests. R. S. 1899, secs. 2947, 3616; White v. Inghram, 110 Mo. 483; Hack v. Rollin, 158 Mo. 188; Blandy v. Asher, 72 Mo. 27.

Louis City Circuit Court. — Row. Daniel G. Taylor, Judge. (1) Inasmuch, as none of the lumber in any of these cars weighed as much as sixty thousand pounds, plaintiff was only entitled to forty-eight hours free time, notwithstanding the lumber may have been loaded in cars of sixty thousand pounds capacity or greater. There ought to be no difficulty in so construing this act. That appears to be the common-sense view of the language of the act.

Transferred from Kansas City Court of Appeals. (1) The record does not, show the filing of any motion for a new trial. The mere recital thereof in the hill of exceptions is insufficient. (2) The record does not show the extension of time for filing hill of exceptions after the term at which judgment was rendered. The filing thereof after the term is unauthorized. (3) The law requires the recorder to “keep” his office at the seat of justice. R. S. 1899, sec. 9055.

Transferred from Kansas City Court of Appeals. (1) The motion to strike out (demurrer) should have been sustained. The suit is brought by the wrong party. If the sheriff, as jailer, had a right to buy water and gas from the Missouri Water, Light and Traction Company, lie did so as the agent of the connty, and the connty became debtor to the company for the same. All legal debts made by any officer of a connty, in the discharge of his duties as such officer, are county debts.

— Eon. John P. Butler, Judge. Upon the record appellant maintains: 1. That the Act of March 5, 1903 (Laws 1903, p. 234), does not apply to the Chariton River. 2. That the drainage proceedings in the county court are nullities. 3.

<p>1. APPELLATE JURISDICTION: Title to Real Estate: To Declare a Trust. A petition asking that a resulting trust in realty be declared, and that the title be decreed out of defendants and into plaintiff, involves title to real estate. But it is the judgment that is appealed from, and if the petition proceeds on the theory that other money than the trust fund was invested in the property, and asks that the amount of the trust fund be ascertained and a lien for the amount be decreed against the realty, and the judgment finds defendants to be indebted in a mone- • tary sum less than $4,500, and decrees a lien on the land for that sum and directs it to be sold to satisfy that indebtedness, but does not decree the title out of them, it does not involve title to real estate, and the appeal is to the Court of Appeals. The lien can be discharged by a cash payment at any time before sale.</p> <p>2. -: -: -: Inchoate Dower. Inchoate dower is not title to real estate so as to confer jurisdiction of the appeal on the Supreme Court from a judgment decreeing that a wife, in case of a sale of land to satisfy a lien, shall be forever barred from claiming dower therein. So that where the judgment finds that certain moneys belonging to plaintiff were used to purchase a lot, and that the title was taken in a husband, and decreed a lien against the lot in favor of plaintiff against both the husband and his wife, and directed the sale of the lot to satisfy the lien, and decreed that from and after said sale the wife be forever barred and foreclosed from claiming dower therein, the judgment does not involve title to real estate.</p>