Volume 226 — Missouri Reports

— Hon. Renry C. Riley, Judge. (1) It was a part of tlie ancient and well-defined jurisdiction of the courts of chancery to construe wills and to declare the limitations of trusts created thereby; and the creation of our county and probate courts has not divested them of this power in this State. Hamer v. Cook, 118 Mo. 476; Hayden v. Marmaduke, 19 Mo. 403; Church v. Robberson, 71 Mo. 326; Bank v. Chambers, 96 Mo. 459; Heady v. Crouse, 203 Mo. 114.

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. (1) A real estate broker, who has found a purchaser for his principal’s property with whom the principal makes a. contract to sell the property and who is ready, willing and able to carry out the same, is entitled to reasonable compensation for his services, in the event no price has been agreed on. Gelatt v. Ridge, 117 Mo. 553 ; Grether v. McCormick, 79 Mo. App. 325; Finley v. Dyer, 79 Mo.

Charles Circuit Court. — Hon. Jas. D. Barnett, Judge. (1) The instruction which the court gave in behalf of the defendant, marked D4, and on account of the giving of which the court granted the plaintiff a new trial, assigning its action in giving said instruction as error, was a perfectly correct instruction, and, therefore, no new trial should have been granted on account of giving same.

Louis City Circuit Court. — Eon. O’Neill By an, Judge. (1) The power to establish, erect and regulate markets is not a governmental power of the city, but belongs to it in its proprietary business capacity. (2) The power in question may be lawfully exercised through individuals or associations as agencies of the public.

<p>Appeal from Hickory Circuit Court. — Hon. Argus Cox, ■ Judge.</p>

— Hon. Joseph J. Williams, Judge. (1) It was the duty of the county court to designate as the county depositary the hanking corporation or individual banker offering to pay to said county the largest rate of interest per annum.” Ever since 1889, when it was first made the duty of the county courts to let out the county funds, the law has ordered that they be let to the highest bidder, to the bidder offering the largest premium or the largest rate of interest per annum.” Laws…

— lion. Jas. D. Barnett, Judge. The transcript is under the shorter process and the foregoing printed .abstract from pages 1 to 15 con-tarns the pleading of the parties; from pages 15 to 16, a brief statement of the case, and from pages 16 to 43 the end of the bill of exceptions.

<p>1. APPEAL: Jurisdiction: Federal Question. Whether the case is a proper one for removal to the Federal court, or whether the petition and bond are what the act of Congress requires, in a sense is a Federal question, but it is not the kind of Federal question of which the Constitution of Missouri gives the Supreme Court jurisdiction. In order to give the Supreme Court jurisdiction on the ground that a Federal question is involved, the case must be one in which “the validity of a treaty or statute of or authority exercised under the United States is drawn in question.”</p> <p>2. -: -: -: Cost of Transcript. The Supreme Court does not have jurisdiction over an appeal from a judgment for $15.50 in favor of a circuit clerk who at the reguest of defendant made out a transcript in another case removed on defendant’s motion to a Federal court, and for which work plaintiff did not certify his bill of costs to the Federal court, whether the case was properly removable or not.</p>

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. (1) The codicil is meaningless and incapable of interpretation. Ambiguity which is patent and not latent cannot be explained by parol evidence. Davis v. Davis, 8 Mo. 56; Robards v. Brown, 167 Mo. 457. (2) In order to divest out of plaintiff, or cut down the interest once vested, the intent to do so must be clear and positive. Augustus v. Seebolt, 60 Ky. (3 Met.) 155; Kane v. Astor’s Exec., 7 N. Y. Sup. Ct.

Clair Circuit Court. — 'Son, G. A. Denton, Judge. (1) The deed of trust explicitly names George M. Riddle, trustee, and he covenants to' perform the trust. He drew the trust deed himself. It clearly appears upon the deed that J. M. Offield was the payee of the note secured, and the beneficiary under the deed. The deed was valid in all respects as a deed of trust with power of sale in the trustee, and, upon his absence or refusal to act, in the sheriff.

— No». W. N. Evans, Judge. (1) The act transferring the land in controversy from Oregon county to Shannon county was passed with the emergency clause, and was approved and toot effect on March 12, 1859. Laws 1859, p. 413. (2) The law in 1858, and ever since that date, has required deeds to he recorded in the county where the land conveyed is situated. Hence the record of respondent’s deed in Oregon county did not impart notice.

Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge. (1) A statement filed in proceedings under a city ordinance for the recovery of a penalty, must, in order to be sufficient, specify the elements of tbe offense sought to be charged' with enough particularity to bar another action for the same offense. St. Louis v. Babcock, 156 Mo. 148.

<p>Appeal from St. Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge.</p>

Louis Court, of Criminal Correction. —Hon. Hiram N. Moore, Judge. (1) The ordinance numbered 22022, under which this prosecution was brought, applies only to buildings to be erected in the future. This appears from an inspection of the ordinance itself. See also: De Leone v. Long Branch, 55 N. J. L. 108; Buffalo v. Chadeayne, 135 N. Y. 163; Regina v. Howard, 4 Ont. 377, 4 Am. and Eng.

— Ho». Alonzo D. Burnes, Judge. (1) Tbe assessment list is tbe basis of taxation of personal property and after being delivered by tbe person in charge of the property, to the assessor and by him filed with the county clerk, becomes a record which cannot be changed or amended except by order of the county court.

— Mon. Nat. M. Shelton, Judge. (1) The judgment of the Saline Circuit Court adjudging’ this title in appellant and not in J ames Barry, was final and concluded Barry and his grantee, the respondent, who had absolute notice of the judgment. The court erred in striking this special plea from appellant’s answer and in refusing to permit him to show the facts under the general denial contained in his answer.

<p>1. APPEAL: County a Party. An appeal from a judgment in a case to which a county is a party, is to the Supreme Court.</p> <p>2. -: -: Abstract: What Rules Govern. Where the case should have been appealed in the first instance to the Supreme Court, but was wrongfully sent to the Court of Appeals, and by that court rightly transferred to this, and the abstract and brief were prepared for this court after the cause reached it, the rules governing their sufficiency and filing are the rules of this court, and not those of the Court of Appeals.</p> <p>3. -: No Abstract of Evidence. The court will not go to the transcript filed in this court for the evidence in a civil case. Unless it is abstracted in a printed abstract it will not be con- . sidered on appeal. References to the transcript in the briefs are not sufficient.</p> <p>4. -: -: Affirmance. Where the record proper is properly abstracted, and shows a claim upon .which a judgment for plaintiff, such as was entered, might have been properly entered, had there been proof to sustain it, and the evidence cannot be considered because locked up in a transcript which has not been abstracted, the judgment will be affirmed.</p>

Appeal frora Audrain Circuit Court. — Eon. James D. Barnett, Judge. (1) Occupancy by one coterminous owner is adverse wben the evidence shows that he claimed and continuously asserted a line.to be the true line, and has held the premises up to it, claiming them as his own. Bisso v. Casper, 14 Tex. Civ. App. 19; Brock v. Bear, 42 S. E. (Va.) 307; Batner v. Baker, 108 Mo. 341; McWilliams v. Samuel, 123 Mo. 659; Brummel v. Harris, 148 Mo. 430.

<p>APPELLATE JURISDICTION: Constitutional Question: Raised Only By Injured Party. An act of the Legislature will he assumed to he valid until someone whose rights are injuriously affected and specially invaded attacks its validity. An insurance company cannot complain that the statute providing that a policy “issued by any company dQing business in this State, to a citizen of this State” is not avoided by the suicide of the insured* discriminates in favor of policyholders who are citizens of this State and against those who are not citizens, and for that reason is unconstitutional and void; nor by such an attack on the statute give the Supreme Court jurisdiction of an appeal from a judgment on a $1000 policy. As the company is in no wise prejudiced by the statute, it cannot raise the point of discrimination for either the citizens of this or another State and assume to champion their wrongs, and cannot be heard to complain that the statute is unconstitutional because it discriminates against certain policyholders.</p>

— Hon. Jackson L. Smith, Special Judge. (1) Under the code practice of this State, an involuntary nonsuit is merely a dismissal of plaintiffs’ cause of action, where it is taken before the cause is finally submitted to the jury, as was done in plaintiffs’ case at Independence, based on the same cause of action as the case at bar. Waterworks Co. v. School Disk, 23 Mo. App. 235; West v. McMullin, 112 Mo. 409; State v. Railroad, 149 Mo. 109’; Pub. Co. v. Young, 90 Mo.

Mandamus. The relator in this case stands- on a literal interpretation of the charter of the city of St. Louis. Assessments for cost of local improvements are proceedings m invitum and, unless regular, special tax-bills based thereon are invalid. The contractor in this case, having faithfully performed its part of the contract with the city, is entitled to valid taxbills — bills above suspicion.

— Eon. Thos. J. Seehofn, Judge. (1) This is an action, not in equity, but by mandamus, for the specific performance of an agreement.

Prohibition. (1) The county court has no jurisdiction under section 6004, Revised Statutes 1899', to include within the boundaries of the village of Bellflower, as sought to be incorporated, large tracts of farm lands which are used exclusively for agricultural and pastoral purposes. State ex rel. v. McReynolds, 61 Mo. 203; State ex rel. v. Campbell, 120 Mo. 402; State ex rel. v. Flemming, 185 Mo. 566; State ex rel. v. Jenkens, 25 Mo.

Mandamus. (1) The Act of 1909 by necessary implication repeals sec. 5252, R. S. 18991. In express terms it repeals article 2, of chapter 91, which article contains the law theretofore in force governing cities of the first class.

<p>1. MUNICIPAL JUDGES: Election by Districts. Under the charter of Kansas City the council had power to provide by ordinance for the election of an additional municipal judge by the voters of the district over which he is thereby given jurisdiction. Said ordinance is not invalid because it does not require all municipal judges to be elected by the voters of the • whole city.</p> <p>2. -: -: Charter Provisions. Section 8 of article 4 of the charter, requiring the judge of the municipal court to “be elected by the qualified voters of the city,” and section 10, providing that “the city may by ordinance divide the municipal court into two or more divisions, prescribe the time and place of holding each of such divisions, and territorial district of the city within which each division shall exercise jurisdiction, and provide for the election, at any general election, of additional judge or judges to preside over such additional division,” are somewhat indefinite as to the right of the council to divide the city into two districts and provide for the election of a judge from each, instead of by the whole city, but they are not in express conflict, and an ordinance providing that each judge shall be elected by the voters of the district is not invalid. Section 8 was meant to apply so long as there was one municipal judge in the city; section' 10 was meant to apply when another was to be added and a district given to each; and if so understood, they are harmonious.</p> <p>3. -: -: Elected By Voters of District. The very fact that said section 10 declares that the territorial jurisdiction of such additional judge is limited to his own district is persuasive argument that the charter means that he shall be elected by the voters of his district only; otherwise, it would have given each judge concurrent jurisdiction throughout the city. [Per WOODSON, J., concurring.]</p> <p>'4. MUNICIPAL CONDUCT: Presumption. It is to be presumed that the city council has acted and will act in a manner consistent with official dignity, honor and probity: It is not to be presumed that, if under the charter the council has" the right to create municipal court districts, it will exercise that power so as to make a district of the lawless portions of the city with power in the law-defying elements therein to elect the judge.</p>

<p>1. LOST DEED: Proof of Contents Before Loss. The order of introducing testimony is a matter resting largely in the discretion of the trial court; and it is not reversible error to permit a party to prove the contents of a lost deed before its loss is shown, where its loss is subsequently satisfactorily established.</p> <p>2. -: Proof of Loss: Proof of Contents: Establishing Title. The land belonged to Owens and plaintiff claimed through him by a lost deed made to Crawford in 1860, and by another deed made by Crawford’s only heir to plaintiff in 1905. The inventory of Crawford’s estate made in 1866, contained this memorandum: “Deed of Richard Owens and wife, dated February 28th, 1860, recorded in Book C, p. 499, Maries County, Mo., for southwest quarter of section 7, and northwest quarter of section 18, township 40, range 10, containing 314.17 acres in Maries county, Mo.” — which was the land in suit. The evidence showed that Record C was destroyed by fire after 1860, and the maker of this memorandum forty years later testified that it was in his handwriting, that he signed it, that he knew it was a correct memorandum made from the deed itself which he held in his hand, but that independently of those facts he could not recall ever having seen the deed. Crawford died leaving an only daughter, and she testified that the deed was given to her by her administrator when she came of age in 1882, that she kept it in a locked box and the last time she saw it was in 1900; that later her husband died and her papers had become scattered and since then she had searched for the paper a dozen times, in the box, her trunk, and safety deposit locker, without finding it, and that it was after her husband’s death that she learned the record of this deed had been burned. She then testified as to its contents thus: “The deed was from Richard Owens and wife to James Crawford, and, it was for the sale of land in Maries county — the township I don’t remember, nor just how or where the land was situated. It was for 314 acres and a fraction. I remember that it was signed. This is all I remember of the inside of the deed. On the outside were the names of Richard Owens and wife, and James A. Crawford, and other writings which I don’t remember.” The record showed taxes were paid by the Crawford estate from 1881 to 1889 and thereafter for a number of years by this daughter. Defendant obtained a deed in 1905 from an heir of Owens for $10, paid the taxes for 1904, and had been in possession since he bought and showed no payment of taxes by Owens or his grantor. Held, first, that the evidence of the loss of the deed laid a sufficient foundation for proving its contents; and, second, that the court properly decreed the title to be in plaintiff.</p> <p>3. PAYMENT OF TAXES. A failure by defendant and those un- ■ der whom he claims to pay taxes for more than thirty years is admissible in evidence as tending to show that neither they, nor the one under whom they claim, claimed to be the owners of the land.</p> <p>4. QUIETING TITLE: Plaintiff’s Recovery: On Strength of His Own Title. The rule in ejectment that plaintiff must recover, if at all, upon the strength of his own title, and not on the weakness of defendant’s, does not apply to a suit under Sec. 650, R. S. 1899, to quiet title. Plaintiff is entitled to a decree if he shows a better title than defendant does</p>

Louis Court of Criminal Correction. —Hon. Hiram N. Moore, Judge. (1) A municipal corporation possesses and can exercise the following powers and no others. First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Dillon, Munic. Corp., sec. 89; Tiedemann, Mun.

Louis City Circuit Court. — Sow. Walter B. Douglas, Judge. (1) A party is charged with constructive notice only of such instruments as appear in the chain of his title. Railroad v. View, 156 Mo. 616; Crockett v. Maguire, 10 Mo. 34; Dingman v. McCullom, 47 Mo. 372; Tydings v. Pitcher, 82 Mo. 379; Ford v. Church Society, 120 Mo. 511; Odie v. Odie, 73 Mo. 289; Becker v. Stroeber, 167 Mo. 322; Payne v. Markle, 89 Ill. 66; Sensenderfer v. Kemp, 83 Mo. 589.

— Hon. W. B. Teasdale, Judge. (1) The trial court erred in trying and determining the whole controversy defined by the pleadings, without the aid of a jury, (a) This action as outlined in the plaintiffs’ petition is one to recover money. The defendants pleaded as defenses to that action the Statute of Limitations, the assertion that the land in question was not accretions to plaintiffs’ shore land, that defendants owned the fee simple title, and estoppel.

— Now. William G. Ellison, Judge. (1) The contract is fully performed and is therefore taken out of the statute. Farrar v. Patton, 20 Mo. 81; Bless v. Jenkins, 129 Mo. 647. (2) The district took possession of the site sued for, and this possession was taken in pursuance of the contract sued on. School District v. Holmes, 53 Mo. App. 487. Taking possession is sufficient part-performance. Young v. Montgomery, 28 Mo. 604.

— Hon. Henry G. Riley, Judge. (1) The trial in the circuit court was de novo and appellant had the right to there present all questions here argued. King’s Lake District v. Jamison, 176 Mo. 562; R. S. 1899, sees. 3318, 3334. (2) The county court acquired no jurisdiction to establish the drain. a. The affidavit for publication to non-resident landowners, was not sufficient to justify an order of publication.

lAppleal from Clark Circuit Court. — Hon. Chas. D. Stewart, Judge. Held: does not apply to intentional killing. State v. Edwards, 70 Mo. 482; State v. Curtis, 70 Mo. 600; State v. Gassert, 65 Mo. 352; State v. Wilson, 98 Mo. 447. In 21 Cyc.

— Ho». Ralph 8. Latshaw, Judge. (1) Instruction 1, requested by appellant was correctly refused. It does not correctly declare the law as to the legal effect of written confessions. Instruction 6, given by the court, is an exact copy of an approved instruction as set out in State v. Tobie, 141 Mo. 561.

Louis City Circuit Court. — Ho». Daniel D. Fisher, Judge. (1) On Friday, April 2,1909, defendant was granted an appeal to this court, and leave was given defendant of thirty days in which to prepare and file his bill of exceptions.' By computation of time, he would have the remaining twenty-eight days in April and two days in May in which to file his bill of exceptions.

— Hon. J. L. Fort, J udge. For the State the court gave four instructions, none of which was based upon the relation or rights of an officer in arresting one charged with crime. The instruction which defines the offense under the theory of the State simply attempts to define culpable negligence, and instructed the jury to convict the deféndant if he killed the deceased under such circumstances as constituted culpable negligence.

— How. Wm. H. Martin, Judge. (1) We do not know of any section of the statutes under which the information could have heen drafted except 1927 or 1930. The amount charged to have been obtained was less than $30 and could be no greater offense than petit larceny.

Louis City Circuit Court. — Hon. Chas. C. Allen, Judge. (1) The indictment is, in both form and substance, practically identical with indictments heretofore approved by this court. State v. Wissing, 187 Mo. 99; State v. Shour, 196 Mo. 205; State v. Gebhardt, 219 Mo. 713; State v. Lipscomb, 160 Mo. 131; State v. Larew, 191 Mo. 194. (2) The allegation as to the money embezzled and its value, is sufficient. E. S.. 1899, sees. 2531, 2535.

<p>1. JUDGE DISQUALIFIED: Another Called. Where the regular judge is disqualified, and calls in the regular judge from another circuit to try the case, and he is disqualified by defendant’s affidavit of prejudice, the regular judge of the court is authorized to call in the regular judge of another circuit, and when such judge appears and the cause is continued and he cannot at the next term try the cause because of the interference of a regular term of court in his own circuit, the regular judge of the court is authorized to call in the regular judge of still another circuit, and such judge has authority to try ths cas*</p> <p>2. RAPE: Several Acts: Election. It is proper, in the trial ot defendant for the rape of his daughter, sixteen years old, to admit evidence of acts of sexual intercourse committed prior to the date charged in the information; and if the court instructs the jury that such prior acts are to he considered only as tending to prove or disprove the act for which a conviction is sought, a refusal by the court to require the State to elect upon which act it would seek a conviction is not reversible error.</p> <p>3. REMARKS OF ATTORNEY. One of the attorneys for the State in his argument to the jury said: “Any man that will commit a rape on a girl such as this, is a coward” — the girl being defendant’s sixteen-year-old daughter. Held, no error.</p> <p>4. RAPE: Insufficient Evidence: Irreconcilable. The statutes on incest and rape attest that these crimes are within the ' experiences of courts and legislatures, and to authorize the Supreme Court to reverse the judgment because of the weakness of the testimony, the verdict must he irreconcilable with human experience; and though the record presents a case that chai-' lenges credulity, yet if the testimony of the prosecutrix is true, and is not irreconcilable with human experience, and if true defendant is guilty, the Supreme Court will not interfere.</p>

<p>1. INFORMATION: False Pretense: Bogus Abstract. The information in this case sufficiently charges that defendant feloniously, designedly and falsely pretended that the abstract of a piece of land which never existed and which was used in the trade, was a true abstract and correctly represented the title.</p> <p>2. INSTRUCTIONS: Length. The length of an instruction will not authorize a reversal, unless it contains objectionable features which of themselves constitute reversible error.</p> <p>3. -: Assumption of Fact. An instruction should not in one part require a jury to find certain things to be true and in another part assume them to be true. It should not require the jury to find that defendant’s representations concerning a certain abstract, lands and the pretended owner Were false and fraudulent and then further on state that such representations were false and fraudulent.</p> <p>•4. -: -: Confusing. And if the instruction, in setting out in the words of the information negativing the representations that the abstract and note were genuine, and the owner an actual person, and the land actual land, does so in such a way that it is uncertain whether those negations were stated as facts in'the instruction, or were things to be found by the jury, the instruction is so confusing and misleading as to constitute reversible error.</p> <p>5. EVIDENCE: Investigation: Correspondence. An investigation made by correspondence, and the results of it, amount to mere hearsay. The testimony of a witness that she sent the abstract which defendant represented to be an original genuine abstract, to the abstracters who purported to have made it, and no answer came, and that she then authorized the postoffice authorities to look them up, and they replied there were no such persons, is hearsay and inadmissible.</p> <p>6. -; Cross-Examination. Great latitude is to be allowed in the cross-examination of witnesses who are interested in the prosecution, or who by testifying are to receive some immunity- from criminal charges, or whose testimony materially varies from their testimony on a former trial of the same or a kindred case.</p> <p>7. -: Leading Questions. The asking of leading questions is a matter largely in the discretion of the trial court, and is no ground for a reversal on appeal unless there is some disclosure showing an abuse of that discretion.</p> <p>8. NEWLY DISCOVERED EVIDENCE: No Affidavit. A new trial cannot be granted on the ground of newly discovered evidence unless there is an affidavit supporting that ground.</p>

— Eon. John T. Moore, Judge. Ownership of the property on a charge of burglary and larceny must be alleged and proved. In this case the information charged the ownership to be in. the estate of J. W. Johnson, deceased.

<p>1. APPELLATE JURISDICTION: By Whom Determined. The Supreme Court determines for itself all jurisdictional questions, and is not bound by the rulings of a Court of Appeals holding that the Supreme Court has jurisdiction of the appeal.</p> <p>2. INSTRUCTION: No Objection, but Exception: Constitutional Question. It is not sufficient that appellant save an exception to the giving of certain instructions. He must also object to the giving of the same before his exceptions will be availing. He cannot raise a- constitutional question by simply excepting to the giving of an instruction based on a statute.</p> <p>3. CONSTITUTIONAL QUESTION: Raised for First Time in Motion: Appellate Jurisdiction. A constitutional question must be timely raised or it will not be held to have been raised at all. Where plaintiff’s instruction is predicated upon a statute, counsel for defendant should object to it at the time it is given, if defendant wishes to be heard on appeal to contend that the statute is unconstitutional, and should at the time assign its unconstitutionality as the ground of the objection, thereby giving the trial court ah opportunity to pass upon the constitutional question before the case is submitted to the jury. The question cannot be raised for the first time in the motion for a new trial, because the purpose of such a motion is to call the court’s attention to errors committed by it in giving and refusing instructions, in order that it may correct the same, and not for the purpose of making objections which should and could have been previously made. The constitutional question should be raised at the earliest available opportunity consistent with orderly procedure, and if not so raised the Supreme Court does not because of it have jurisdiction of the appeal.</p>

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) This case was essentially one of equitable cognizance, being a petition for discovery and accounting of certain bonds alleged to have been received by defendant in trust for plaintiff which plaintiff claimed the right to retain by reason of participation under agreement with plaintiff in the ventures wherein said bonds were received by defendant.

— Hon F. C. Johnston, Judge. (1) Where no definite estate is in terms given to the first taker — no express words of inheritance or such as imply a fee being used or power of sale given —then a limitation over upon his death is always construed as indicating an intent that such first taker shall have a life estate only. A devise without words of limitation is confined to a life estate by a devise over on the death of the devisee.

<p>Appeal from Newton Circuit Court. — Ron. F. G. Johnston, Judge.</p>

Louis City Circuit Court. — Eon. E. D. Wood, Judge. ' (1) The court erred in overruling appellant’s motion to quash the array of jurors filed before the commencement of the trial. Lyons v. Hamilton, 69 la. 47; Ashbough v. Edgecomb, 13 Ind. 466; People v. Cage, 48 Cal. 323; 17 A. R. 457; Norvell v. Duval, 50 Mo. 272.

<p>1. APPEALS: Taxing Costs: Printed Bill of Exceptions. Where appellant appealed by the “short method,” and the judgment was reversed, he is not entitled to have taxed against the respondent as costs in the case five cents per folio for the extra copy of the bill of exceptions furnished to appellant by the stenographer at the trial court. When the appeal is taken by that method, no copy of the bill is required to be certified to the appellate court, and hence the court has no basis upon which to base an order taxing the costs of making a copy, and besides the statute (Sec. 10115, R. S. 1899) does not apply in such case.</p> <p>2. -: -: -: Transcript. It is only when the appeal is taken by the “long method” that a certified transcript of the bill of exceptions is required to be filed in the Supreme Court, and it is only when the appeal is by that method that section 10115, Revised Statutes 1899, contemplates that the extra copies of the bill of exceptions will be made by the court stenographer.</p>