Volume 225 — Missouri Reports

— Eon. J. W. Alexander, Judge. (1) When Thomas J. Meadows used the money of defendant, his wife, which had come to her by inheritance from her father and was her separate property, in the purchase of the farm in controversy, a trust thereby resulted in her favor and the land in equity belonged to her. The land was paid for by her checks only. If her mother had any interest it passed to defendant in December, 1900', when her mother died.

— lion. Alonso D. Burnes, Judge. (1) Patrick F. Moore was landlord to tire other defendants and that relation began in May, 1890. They were bis tenants when the leases offered by the plaintiff were made and consequently those leases were not only incompetent as evidence in this case, but were void. Their introduction was very prejudicial to Patrick F. Moore. Walser v. Graham, 45 Mo.

— Hon. Argus Cox, Judge. (1) There is no dispute as to the execution of the will in question, nor that Asa J. Fender was capable of disposing of his property by will, nor is it contended that there is any doubt or obscurity as to the intention of the testator, as expressed in the will. Having discovered the intention of the testator it is the duty of the courts to carry the same into effect.

—Hon. J. L. Fort, Judge. (1)' Sheriffs in selling land under execution should divide the land, when susceptible of division, and sell only so much thereof as was necessary to pay the execution and costs, and while such failure on the part of the sheriff does not make a sale void, yet the sale will he set aside on timely motion to that effect, or on a direct proceeding in equity for that purpose. Yeamann v. Lepp, 167 Mo. 61; State ex rel. v. Elliot, 114 Mo.

Louis City Circuit Court. — No». Matt. G. Reynolds, Judge. (1) Defendants ought not to be held liable for all the costs of this suit. It will be inequitable and unfair to require defendants to pay all the costs. R. S. 1899, secs. 1549, 1550, 1559; Turner v. Johnson, 95 Mo. 452; Bender v. Zimmerman, 135 Mo. 53; Schawacker v. McLaughlin, 139 Mo. 333; Plant Seed Co. v. Michel Plant & Seed Co., 37 Mo. App. 313.

— Hon. Wm. B. Teasdale, Judge. (1) Where, in an action for damages, the plaintiff’s petition states: 1st, That she was injured hy the starting of defendant’s ear while she was in the act of hoarding the same; 2d, That the start of the car was so sndden as to throw her down; and, 3d, That defendant’s servants knew, or by diligence could have known, that she was so in the act of boarding the car; the first charge is the essential and predicative one, and plaintiff is entitled…

— No». Jas. T. Neville, Judge. (1) When in the year 1898 the plaintiff contracted with her husband, Fredolin Egger, that in lieu of what she would he entitled to take of his estate 'as his wife upon his death, under the statute, he should provide by his will that the payment of $75 per month should be secured to her so long as she should survive him, she had the legal right and power to enter into ranch contract with him and thereby make it a valid and legal contract…

— Hon. Hugh Dabbs,, Judge. (1) The court erred in permitting Kendrick to testify what the mine would have been worth if as represented, and erred in permitting Lyman to testify what the mine would have been worth if as represented. It was incompetent and the value was purely speculative. The value was fixed at $4,000, being the amount paid by plaintiff to appellant.

Prohibition. (1) A court of equity has no inherent power to dissolve a corporation or declare a forfeiture of its charter. Decker v. Gardener, 124 N. Y. 334; In re Atlas Iron Cons.

Prohibition. (1) The application for this writ was timely and the case should he considered on its merits. State ex rel. v. Rombauer, 105 Mo. 105; State ex rel. v. Elkin, 130 Mo. 90; Barnes v. Gottschalk, 3 Mo. App. 115; Olive v. Snider, 176 Mo. 63.

<p>1. JURISDICTION: Order of Publication: Sufficient Affidavit. An affidavit in a partition suit, stating that the individual defendants “are non-residents of the State of Missouri,” authorizes an order of publication against such defendants, and if that is sufficient, the court has jurisdiction over them. It is not necessary, where the defendants are individuals, that the affidavit also state that the individual defendants “cannot be served with the ordinary process of law.” x</p> <p>2. PARTITION: Amended Petition: Different Land: New Theory on Appeal. Where defendant in the trial court did not object to the amended petition filed in partition that it was a departure from the original petition, described different land and therefore stated a different cause of action, he will not be heard to make that point on appeal. An objection to the amended petition that it did not contain a prayer for an order of publication, did not raise the point.</p> <p>3. -: No Approval of Sale. The statute contemplates that the deed shall remain in abeyance until the court has approved the report of the Sale in partition, and a deed made before confirmation is inoperative, unless the coparceners have estopped themselves to question its validity.</p> <p>4. -: - — : Minute Book. A memorandum found in a minute book in the office of the circuit clerk indicating that the report of sale in partition was approved, is not a record entry showing the approval of the court. Such a minute is not a judgment: at most it is evidence on which a nunc pro tunc judgment of approval could be based.</p> <p>5. -:-: Estoppel: Ratification. The coparceners who were brought into court in the partition suit by order of publication estopped themselves from insisting that the order of sale was not approved by accepting their respective shares of the proceeds of the sales and signing receipts which designated the lands sold and the respective interest of each. And though they state in their suit to remove the sheriff’s deed as a cloud upon their title that they did not accept the proceeds knowing there had been a partition proceeding, yet if the record shows they did know or that the words used in the receipts were sufficient to put them upon inquiry, they will not be permitted to repudiate the sale.</p> <p>Held, by VALLIANT, C. J., dissenting, that knowledge sufficient to put them upon inquiry was not sufficient. But they must have had actual knowledge, and if they accepted the money, supposing it was the proceeds of a foreclosure sale of a mortgage on other lands, they are not estopped either by estoppel or ratification.</p> <p>6. -: -: -: -: Knowledge of Purchaser: Change of Position. Nor is it necessary in such case, in order that the coparceners who have knowingly received the proceeds of the sale, be estopped from repudiating it, for that it was not approved by the court, that the purchaser should have known and relied upon the receipt of the purchase money and changed his situation to his disadvantage. That is the rule for estoppel in pais, but there are other forms of estoppel, which strictly speaking are acquiescence or ratification, which as completely 'amount to a bar. In those cases the rule is that, when those who are entitled to avoid a sale knowingly adopt and ratify it, equity will estop or bar them from afterwards setting it aside. (VALLIANT, C. J., dissenting.)</p>

— Hon. Henry C. Riley, Judge. (1) The doctrine of estoppel does not apply in this case, for the reason that the plaintiffs, as they received the money, had no knowledge of the fact that the money they received was for the sale of the land in question. There is no such thing known to the law as a party being estopped from his actions in a matter wherein he has not full knowledge of the facts in connection therewith.

— Ron. F. 0. Jolmston, Judge. The court erred in admitting evidence that the rear brakeman of the construction train was in the blacksmith shop, instead of on the rear car, when the deceased was killed, as the law did not require the defendant, in its yard, to maintain watchmen to give notice to its employees of the movement of its cars.

— Hon. Argus Cox, Judge. (1) The circuit court properly held in the trial of this case that, since defendant had continually claimed title by virtue of his said tax deed and said tax deed came from a common source with plaintiff’s claim to title, and since defendant, in case judgment was entered in his favor, could properly have come into court after September 21, 1906, and pleaded his peaceable, adverse possession for a period of ten years under a claim of title based upon…

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The burden was on the relators to furnish evidence to the State hoard that Barnes University was a “reputable” medical college at the time rela-tors were graduated. 1.

<p>1. NEGLIGENCE: Evidence; Rules of Railroad Company: Distance of Building From Track. Where plaintiff, an engineer in charge of a moving railroad locomotive, got down on the steps of the tender to locate a flat wheel, and while there was struck by a private house four feet from the rails, it was not error to permit him to introduce in evidence a rule of the company, which all engineers were required to know, declaring that “all buildings, erected by private corporations or parties, should not be located nearer than six feet from the nearest rail.” Said rule was notice and assurance to him that he had at least six feet of safety in which to operate his train, and there is no difference in principle whether the house was built by the company on its right of way or whether it was a private house within four feet of which the company laid its rails. The engineer had the right to assume that defendant company had performed its duty and placed the track at a reasonably safe distance from the house, until he had been warned of its dangerous proximity.</p> <p>2. --: -: Time-Table: Warning as to Dangerous Bridges: No Warning as to House. Where the railroad time-table, which every engineer was required to carry and which the engineer had with him at the time he got down on the tender’s steps to look for a flat wheel and was struck by a house situated four feet from the rail, in a foot-note named certain bridges that “will not clear to a man on side of car,” but did not mention the house, it was competent to admit it in evidence. It could not be held to be competent only as a warning of dangerous bridges. The fact that it did not mention the house made it competent as an assurance to the engineer that the house was not dangerously near to the track.</p> <p>3. -: -: -: Warning After Accident That Place is Dangerous: Harmless Error. Where plaintiff, an engineer in charge of a moving locomotive, got down on the steps of the tender to locate a flat wheel, and was struck by a house four feet from the rail, it was not reversible error to permit plaintiff to introduce in evidence the foot-note to a time-table issued after the accident, which recited that the house would “not clear a man on side of car or engine.” Its admission was error, in that it ordinarily is immaterial, and in certain situations prejudicial, to show a change in the conditions after the accident; but it was not prejudicial for the reason the distance between the rail and the house had remained the same from the date of the accident to the time the timetable was issued. And the error being harmless, the judgment for plaintiff cannot, under section 865, Revised Statutes 1899, be reversed because of it.</p> <p>4. -: Contributory: Imputed Knowledge of Distance of Dangerous Structure. An engineer is not to be charged with knowledge of the dangerous proximity of a building to the track by the fact that he had for years prior to the accident run a train thereon daily in daylight. It is a matter of common knowledge, of which courts will take judicial notice, that all men do not possess the same faculty for estimating distances; and where the testimony is that the engineer had never measured the distance between the track and the house, and that his attention had never been especially called to its dangerous proximity, and that it is difficult for any one while riding on an engine to judge of the distances from the track of near-by structures, it becomes a matter for the jury to determine whether or not he was guilty of contributory negligence in getting down on the steps of the tender, while the train was moving, to discover a fiat wheel, it being a part of his duties to discover such wheel.</p> <p>5. -: -: Choosing Dangerous Way: Locating Flat Wheel: Additional Delay. If the conditions are such that the safer way cannot be used, the law permits the pursuit of the dangerous way. So that where the engineer and fireman tried to locate a flat wheel by observation from the engine, but failed; and when the train reached the next station, the engineer made a careful inspection, by both looking and running his hand around the wheels, and again failed; and the testimony is that the surest and usual way for locating a flat wheel, is for the engineer, while the train is in motion, to put one foot upon the steps of the tender and the other upon its gang way, and grasp the handholds with his hands, and while in that position watch the wheels and determine the defective one by seeing the journal box bounce up and down as the flat place on the rim of the wheel strikes the rail, and he pursued that course, when to have done otherwise meant delay, it is for the jury to determine whether he exercised the care of a reasonably prudent man in choosing this dangerous way.</p> <p>6. -: Assumption of Risk. Unless the injury received by the servant was incidental to some risk assumed by him, he will not be debarred a recovery by the doctrine of assumption of risks. He never assumes the risk of injuries occasioned by the carelessness or negligence of his master. The master is required to furnish his servant a safe place in which to work, and if the servant’s injury results from that failure the master is liable. Where the evidence tends to show that defendant railroad maintained its tracks for years at a distance of only four feet from a house, and its engineer, while in the performance of his duties, was struck by said house, and the jury have found that the place was dangerous and that the company had knowledge of the fact and the engineer did not, the finding is conclusive upon the question of the engineer’s assumption of the risk.</p> <p>7. -: Contributory. Before the court or jury can charge the engineer of a moving train with contributory negligence in getting down on the steps of the tender and looking under to discover a flat wheel, they must be satisfied from the evidence that he either knew, or by the exercise of ordinary care might have known, that the building by which he was struck was near enough to the track to strike him while in that position.</p>

— Eon. Jas. G. Sheppard, Judge. (1) The lease executed hv Mollie Knight to the Wright-Dalton-Bell-Anchor Store Company on June 1, 1901, was void and of no effect for the reason that there was an outstanding lease that was in full force and effect at the time, and the defendant Store Company secured no right by reason of such lease. Knight v. Orchard, 92 Mo. App. 466; Steel v. Culver, 158 Mo. 138. (2) Defendant company could not dispute its landlord’s title.

— How. Henry M. Harney, Judge. Plaintiff, under the laws of Iowa referred to in the petition, had a cause of action against defendant which had fully accrued on the date mentioned in the petition, hut under the law in effect in this State at that time there was no procedure provided by law for enforcing plaintiff’s existing cause of action in this State, and to remedy this condition the State of Missouri passed an act found in Session Laws 1905, at page 95, which act…

— Eon. Jno. T. Moore, Judge. (1) The motion to quash should have been sustained because the information in this case charges no offense under the laws of the State. Nothing can he taken by intendment or implication in a felony case. The knife is described as being six inches long, but has no blade.

<p>1. BURGLARY: Information: Removing Screen: Second Degree. An information which does not charge in the terms of the statute any of the modes of breaking and entering specified in section 1880, ¡Revised Statutes 1899,' but simply alleges the forcible removing of a wire screen of an outer window of said dwelling-house, does not charge burglary in the first degree, but burglary in the second degree; and hence, evidence that defendant was found in the dwelling-house and that a screen had been removed, establishes burglary in the second degree.</p> <p>2. -: Evidence of Higher Offense: Conviction of Lower Degree. Even if it be conceded that the evidence tends to establish the offense of burglary in the first degree, it is very questionable whether defendant can complain that he was convicted of burglary in the second degree.</p> <p>3. -: Larceny: Request for Separate Instructions. Where the evidence clearly showed that defendant was guilty of both burglary and larceny, or not guilty of either, defendant cannot convict the trial court of error in failing to give an instruction • telling the jury that they might find him guilty of one offense and acquit him of the other, by simply objecting and excepting to the failure of the court to instruct upon all questions of law arising in the case. He should go further and indicate in some way the subjects the court has failed to cover by the instructions.</p> <p>4'. -: Entering By Window: Open Doors. If defendant entered the dwelling-house by removing a window screen, he was guilty of burglary, and it makes no difference whether the doors were open or unfastened.</p> <p>5. -: Weight of Testimony. Where the verdict of guilty of burglary and larceny is supported hy substantial evidence and is approved hy the trial court, the Supreme Court will not interfere, however conflicting the testimony may he.</p>

Application fo.r Writ Coram Nobis. (1) The writ of error coram nobis is grounded upon latent errors of fact which do not appear upon the face of the record, but which must be brought to the attention of the court by evidence aliunde. It is in the nature of a new action, analogous to the writ of error.

<p>1. APPEAL: Demurrer: Preserved in Bill of Exceptions Only: Not Reviewabie. A demurrer to tbe information is recognized as a pleading and is therefore a part of the record proper and if it does not appear in the record proper but only in the bill of exceptions, no point raised by it is for review on appeal.</p> <p>2. -: -: -: -: Constitutional Question. And if the offense which the information charges is a misdemeanor and in order for the Supreme Court to have jurisdiction of the appeal a constitutional question must be involved, and if such point is raised only by the demurrer which is preserved only in the bill of exceptions and therefore cannot be considered, ’the Supreme Court does not have jurisdiction to hear and determine the appeal.</p> <p>3. INFORMATION: Demurrer After Plea. A demurrer to an information charging a misdemeanor, filed after the entry of a plea of not guilty, cannot be considered. He waives his right to demur by his prior plea of not guilty, unless when he wishes to file his demurrer he first withdraw his plea.</p>

— Eon. David E. Eby, Judge. (1) This case seems to come within the rule laid down in the case of State v. Hayes, 220 MJo. 1, and cases cited. (2) And could this appeal escape the force of the decisions to which reference is made, another difficulty of quite serious nature would he met in the path to a reversal of this cause, i. e., the motion to quash, and the exception to the court’s action thereon, are not preserved for review. State v. Tooker, 188 Mo. 444.

<p>1. ELECTION: Fraudulent Registration: Evidence. The secretary of the hoard of election, commissioners of the city of St. Louis is competent to testify that a general registration of voters in all the wards and voting precincts of said city was being neld on the day in September defendant is charged with falsely registering under a name other than his own.</p> <p>2. TREATMENT OF PRISONER: Taken to Prosecuting Attorney’s Office. The practice of hurrying a defendant, upon his arrest, to the office of the circuit attorney, does violence to American institutions and is to he condemned; hut if it does not appear that the defendant was injured thereby it will not constitute reversible error.</p> <p>3. REMARKS OF COUNSEL: Improper: Not Preserved in Motion. Remarks by the State’s attorney, in a prosecution for falsely registering under a name other than his own, that defendant “is nothing hut a rat and a thief” and that “he is worse than a thief,” go beyond the scope of legitimate argument; hut the error of the trial judge in holding them to he proper is not for review on appeal if not preserved in the motion for a new trial.</p> <p>4. _; -: -: Considered in Connection With Other Preserved Matters. Nor can said improper remarks he considered in connection with other alleged preserved errors, if such errors are not of themselves sufficient to work a reversal. There is no way to give an appellant the advantage of erroneous rulings not preserved for review, if no point properly preserved is of itself tenable.</p>

<p>Appeal from Howell Circuit Court. — Ho». W. N. Evans, Judge.</p>

— Hon. Hugh Babbs, Judge. The sheriff cannot communicate with the jury after the ease is finally submitted to them, except to ask them if they have arrived at a verdict, except upon order of the court. R. S. 1899, sec. 2629. The very purpose of a jury trial is to get the free deliberate judgment of the jury uninfluenced by anything except the evidence from the sworn witnesses and the proper written instructions from the court.

Louis Court of Criminal Correction. —lion. Wilson A. Taylor, Judge. (1) The first count of the information herein is bottomed upon Sec. 10088, R. S. 1899.

<p>Appeal from Webster Circuit Court.— Hon. Geo. H. Williams, Special Judge.</p>

— PLon.E. E. Porterfield, Judge. (1) Tlie conrt erred in overruling’ defendant’s application for a continuance. The application complied fully with every requirement of the statutes. R. S. 1899, sec. 2600; State v. Anderson, 96 Mo. 241; State v. Farrow, 74 Mo. 531. (2) The court erred in not permitting the defendant to show the threats made against him and his wife hy the prosecuting witness the same day of the difficulty.

Louis City Circuit Court. — Hon, Daniel D. Fisher, Judge. (1) There was no affirmative evidence to prove a larceny. State v. Keeland, 90 Mo. 337. The prosecution must establish each of the essential elements of the crime. To constitute a larceny there must be a trespass. State v. Stone, 68 Mo. 101. Larceny cannot be committed, generally speaking, unless the- taking is against the will of the owner. State v. Miller, 174 Mo. 518; State v. Storts, 138 Mo. 127.

Louis City Circuit Court. — Eon. Geo. H. Shields, Judge. There can he no conviction for an attempt to commit an offense upon proof which shows that, if anything, the completed offense was committed. State v. Scott, 172 Mo. 536; State v. Bell, 194 Mo. 266; State v. Harris, 199 Mo. 716; State v. Clark, 221 Mo. 391.

<p>BILL OF EXCEPTIONS: Not Identified. Where the bill of exceptions set out in the transcript is not properly identified or authenticated, it cannot be considered on appeal; and a judgment of conviction will be affirm.ed, if no error appears in the record proper.</p>

— Eon. G. A. Benton, Judge. (1) The prosecution in this case was barred by sec. 2419, R. S. 1899. The information was not filed until over six years after the alleged commission of the offense. The State sought to evade the bar of the statute by pleading its suspension under the terms of sec. 2421, R. S. 1899. (2) The peremptory instructions offered by defendant at the close of the State’s case should have been given.

Louis City Circuit Court. — Hon. Chas. C Allen, Judge. Section 2818 of the parole law is unconstitutional, as it nowhere provides that any warrant, information or other legal process shall issue for the arrest of the paroled person, and is in direct conflict with the Fourteenth Amendment of the Federal Constitution and sec. 30 of art. 2 of the Constitution of Missouri, and conflicts with secs. 2441 and 2447, R. S. 1899.

— Hon. J. L. Fort, Judge. The record does not show an arraignment of appellant on the second.- information. Sec. 2561, R. S. 1899, requires that all defendants must be arraigned and required to plead before being put upon trial, or a plea entered by the court on the refusal of such defendant to plead. ¥e see no escape from a reversal of the case at bar, although it may mean that a guilty defendant will avoid a just punishment.

— Hon. W. N. Evans, Judge. The indictment charges in the one count the wounding of four cattle and the killing of three: two separate and distinct offenses, the wounding a misdemeanor, the killing a felony. These two offenses could. not he joined in the same indictment, even if separately stated in different counts, hut in no event could they he joined in the one count. State v. Nitch, 79 Mo. App. 99; State v. Green, 24 Mo. App. 227; State v. Harrison, 62 Mo. App. 112.

— Hon. Thos. F. By an, Judge. (1) The certificate to the transcript recites that “the foregoing is a full, true and complete copy of the files and record entries and order allowing appeal, and hill of exception . . . and is in the following words and figures, to-wit: ...

Louis City Circuit Court. — lion. Chas. Glaflin Allen, Judge. (1) The fourth parag'raph of the first instruction assumes that the weapon used was a heavy glass bottle. There is nothing in the record to show what sort of bottle was used in the alleged assault, it being described only as a “Bevo” bottle, and identified as the bottle which appellant had in his hand when he was arrested.

Louis City Circuit Court. — Sow. Matt O. Reynolds and lion. Win. M. Kinsey, Judges. (1) The funds of a building and loan association must be offered to the stockholders at a stated meeting without restriction as to the premium. Each stockholder must be afforded the opportunity of borrowing at the lowest rate he can in competition with other stockholders. The officers or board of directors have no right to regulate by by-law or otherwise the premium.

Court. — Ho». Nat. M. Shelton, Judge. (1) A party may restrain a continuous breach which is beneficial to him, and stand on the very letter of his obligation, for a party' cannot make a solemn obligation and then disregard it on the plea that no harm will result to the other party. Bank v. Kennett Estate, 101 Mo. App. 370. The continuance of a breach of the rights respecting an easement, combined with, permanent and irreparable injury may be removed.

— Hon. Hugh Dabbs, Judge. (1) ' A petition attacking a judgment .as having been procured by fraud should point out in what particulars the alleged fraud was committed, or the specific acts wherein fraud in the procurement of such judgment is alleged to exist. Unless the petition does so state, no cause of action for setting aside the judgment is stated. Nagel v. Eailroad, 167 Mo. 89.

— Hon. J. W. Alexander and Hon. Frank H. Trimble, Judges. (1) An insane man cannot be party plaintiff in a lawsuit. Hayes v. Miller, 81 Mo. 424. The petition was a suggestion of “disability” (R. S. 1899, sec. 756), and was so treated by the court, but the law governing revival of causes was not followed. R. S. 1899, secs. 758, 759.