Volume 219 — Missouri Reports

Transferred from St. Louis Court of Appeals. (1) The contract for services as engineer made by plaintiff with the board of commissioners was ultra vires and void. Drainage Dist. v. Daudt, 74 Mo. App. 579; Frissell v. Williams, 87 Mo. App. 518; Drainage Dist. v. Jamison, 176 Mo. 557. And warrants or orders issued in payment for services performed under said contract were without consideration and void.

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. (1) The question of reasonable time is sometimes one of fact and sometimes one of law. In this case we contend it was a question of fact, and should have been submitted to the jury. Randolph v. Prick, 57 Mo.

— lion. Chas. A. Denton, Judge. (1) (a) At common law, and before the enactment of Sec. 4335, R. S. 1899, a married woman could not be estopped in pais in respect to her real estate, because she could not convey nor contract for the conveyance of the same, expressly; and it was held that she could not do by implication or estoppel that which she could not do by express contract. Muller y. Kaess-mann, 84 Mo. 329. (b) This decision was rendered in 1884.

<p>Appeal from Bates Circuit Court. — Eon. Chas. A. Benton, Judge.</p>

Louis City Circuit Court. — Eon. Daniel G. Taylor, Judge. (1) That part of the deposition of H. B. Crady which shows what efforts defendant made to secure his testimony and what inducements or threats were made was an admission upon the part of defendant and should have been admitted. Snell v. Bray, 56 Wis. 156; Cruikshank v. Gordon, 48 Hun 308.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) This being an equity case, this court is not in any sense bound by the finding of the trial court on questions of fact, but will examine and weigh the evidence for itself and make its own finding, independent of what the trial court may have believed the facts to be. Lins v. Lenhardt, 127 Mo. 280; Turner v. Overall, 172 Mo. 271.

— Eon. W. B. Teas dale, Judge. (1) Assuming that plaintiff was entitled to recover under the evidence, yet the amount returned hy the jury is so outrageously excessive, unjust and oppressive as to shock the conscience of any reasonable person, and must have been brought about by passion or prejudice or a misunderstanding of the legal effect of the testimony on the part of the jury in respect to plaintiff’s alleged injuries.

— Hon. C. A. Den-ton, Judge. (1) The Act of March. 19, 1907, under which defendant was prosecuted, is unconstitutional, in that it is special and class legislation. The only purpose of a statute of this character is the accommodation of the traveling public. The necessity for such a law, if there be any at all, is to accommodate the public by furnishing ample facilities for travel “every day”, including Sunday.

Transferred from St. Louis Court of Appeals. Appellant presents one question for the consideration of this court. Appellant was adjudged guilty of contempt and sentenced to imprisonment “in the common jail in the city of St. Louis for the period of thirty days, or until he shall he discharged according to law.” This judgment was void, because in excess of the term of imprisonment authorized by the statute.

<p>CONTEMPTS: Punishment: Limited by Statute. Tlie inherent power of circuit courts to fix the amount of punishment in eases of contempts cannot he limited or abridged or regulated by statute.</p>

<p>CONTEMPTS: Punishment: Limited by Statute. The inherent power of circuit courts to fix the amount of punishment for contempts cannot he limited or abridged or regulated by statute.</p>

Prohibition. (1) Respondents for the year Í907 refused and failed to comply with Sec. 9283, R. S. 1899. Upon the authority of the section itself and the following cases construing the same relators herein say the same is mandatory. Book v. Earl, 87 Mo. 246; State ex rel. v. Appleby, 136 Mo. 408; State ex rel. v. Johnson, 162 Mo. 621; State ex rel. v. Payne, 151 Mo. 667; Andrew County ex rel. v. Schnell, 135 Mo. 31; State ex rel. v. Horstman, 149 Mo. 296.

Louis City Circuit Court. — Hon. O’Neil Ryan, Judge. Under tbe deed in question, tlie children named in the deed acquired a vested remainder in the property thereby conveyed and upon the death of John Henry Lauman (one of the children so named) his interest, under his will, passed to his widow, the plaintiff, and she is therefore entitled to an undivided one-fourth interest in said property.

<p>For tlie reasons stated In Buxton v. Kroeger, ante, p. 224, tlie' judgment in this case is affirmed.</p>

<p>For the reasons stated in Buxton v. Kroeger, ante, p. 224, the judgment in this case is affirmed.</p>

<p>For the reasons stated in Buxton v. Kroeger, ante, p. 224', the judgment in this case is affirmed.</p>

— ■ Hon. Nat. M. Shelton, Judge. The sundering of natural ties and the formation of artificial ones for the enjoyment and gratification of the party at whose instance this is done, is held and on gilt to be held to be such a consideration as tbe conrts will recognize as valuable where tbe other party has in good faith acted on and carried out the agreement on his part. This is upon the principle that the parties cannot be put in statu quo.

— Eon. John G. Park, Judge. (1) The court erred in excusing Juror Baum for cause. Glasgow v. Railroad, 191 Mo. 347; State v. Taylor, 134 Mo. 142; State v. Miles, 199 Mo. 544. (2) The court erred in admitting testimony of C. T. Murray as to the method of construction of viaducts in other cities.

— Hon. Geo. W. Wanamaher, Judge. (1) The court erred in.finding for the defendants and rendering judgment against the plaintiff on the first count of his petition, (a) Every conveyance of land made to hinder or delay creditors in the collection of their lawful demands shall be deemed void. R. S. 1899, sec. 3398; State ex reí. v. Püreell, 131 Mo. 312; Martin v. Estes, 132 Mo. 402; Imhoff v. McArthur, 146 Mo. 571.

— Eon. Geo. W. Wanamaker, .Tudge. (1) The court erred in finding for defendants and rendering judgment against plaintiff on the first count of Ms petition, (a) Every conveyance of land made with intent to Mnder or delay creditors in the collection of their lawful demands shall henceforth he deemed and taken as void at the suit of creditors. R. S. 1899, see. 3398; Kurtz v. Troll, 175 Mo. 512; Davidson v. Dockery, 179 Mo. 687; Baer, Seasongood So Go. v. Lutter, 85 Mo. App. 317.

— Hon. H. L. Mc-Cune, Judge. (1) There was no evidence that the death of deceased was directly or proximately caused or produced by the injuries sustained in the accident. (2) The court erred in refusing instructions numbered three, four and nine, asked by defendant. Hicks v. Railroad, 46 Mo. 309; Shearman & Redfieíd on Negligence (5 Ed.), sec. 28; Brown v. Railroad, 20 Mo. App. 227; 1 Sutherland on Damages, secs. 23 and 29; Saxton v. Railroad, 98 Mo.

- — Hon. W. G. Ellison, Judge. (1) The conrt erred in rejecting and refusing to admit competent and material evidence offered by plaintiff. Baldwin v. Robinson, 53 N. W. 531; Shep-ardson v. Potter, 18 N. W. 575; Haynes v. Hayden, 95 Mich. 332; In re SchelPs Estate, 28 Colo. 168; Clough v. Clough, 10 Colo.

— Eon. John Q. 'Park, Judge. (1) The refusal of the father, Thomas Ritter, to join with the mother, cannot prevent the mother from suing. The father, Thomas Ritter, refused to join with the mother because he had executed a release to defendant for a smaJl sum. That by so doing he could deprive the mother of the right to sue is rank injustice. Each would have an equal interest in the judgment and neither could release the claim of the other.

— Eon. H. L. Mc-Gune, Judge. „ The petition fails to state a cause óf action and the failure is not aided or cured by the instructions given, or by the evidence.

— Hon. W. L. Jarrott, Judge. (1) Plaintiff at time and place of accident was neither a passenger, employee, nor licensee, but a trespasser.

<p>Appeal from St. Louis County Circuit Court. — Eon. Jno. W. McElMnney, Judge.</p>

— Hon. W. N. Evans, Special Judge. (1) Instructions 2 and 3, given at the request of*' the plaintiffs, do not correctly state the law. When this case was before this court on a former occasion, an extract from Barringer & Adams on Law of Mines & Mining was quoted approvingly.

— Eon. A. E. Waller, Judge. (1) The trial court should have sustained defendants’ objections to the introduction of any evidence in the case.' First: Because the petition shows upon its face that it is a proceeding in partition for the sale of said real estate, and also shows that by the will the land was devised to the wife for life and after her death the executor was directed to sell the same. R. S. 1899, sec. 4383.

Louis City Circuit Court.- — Hon. Matt. G. Reynolds, Judge. (1) A transfer of partnership property by one partner to pay bis individual debt without the knowledge and consent of bis copartner, is void and does not have the effect to pass the title of the partnership therein, and the property, nr its value, can be recovered in an appropriate action. Flanagan v. Alexander, 50 Mo. 50; Ackley v. Stacblin, 56 Mo. 558: Forney v. Adams, 74 Mo. 138; Ewart y. Tootle, 50 Mo.

Mandamus. (1) 1. L. D. Grove’s authority as attorney for James M. Potter being totally dissolved by Potter’s death, Grove had no authority to move for a dismissal. Railroad v. Woodson, 110 Mo. App. 208; Prior v. Kiso, 96 Mo. 303; Jndson v. Love, 35 Cal. 463; Risley v. Pel-lows, 10 Ill. 531; Gleason v. Dodd, 4 Mete. (Mass.) 333; Weeks on Attorneys at Law (2 Ed. 1892), sees. 248, 256. 2.

— Ron. Argus Cox, Judge. (1) Defendant claims that material error was committed in not giving him a preliminary examination as provided in Laws 1905, page 133. The Legislature deemed a preliminary examination of such paramount importance in capital cases that it singled out this class of criminal cases and expressly provides that no defendant shall he prosecuted by information unless he was first given a preliminary 'examination.

Butler Circuit Court. — Eon. J. C. Sheppard, Judge. (1) The information alleges that the offense was committed on the 11th day of December, 1906, thus charging but -one offense. The time is not laid with a continuando, so as to include other offenses committed after that date, but alleges a day certain, and does not inform the defendant that he is .required to meet any other charge of an offense committed on any other day. Every traversable fact must be alleged with time.

— Hon. L. B. Wood-side, Judge. Where no bill of exceptions is filed and the record proper is free from error, the judgment will be affirmed. State v. Miller, 209 Mo. 389; State v. Brown, 206 Mo. 718. The information charges with certainty and particularly all essential facts and elements, and fully informs defendant of the exact nature and cause of the accusation against him. State v. Layeock, 141 Mo. 279; State v. Harrin, 209 Mo. 435.

— How. W. N. Evans, Judge. (a) The first count of the information is sufficient in form and substance. It is drawn under Sec. 2001, R. S. 1899.