Volume 227 — Missouri Reports

— Hon. W. C. Davidson, Judge. (1) The court erred in admitting the papers offered by defendants, without proper proof of their execution and of the facts assumed therein.

<p>Error to Pettis Circuit Court. — Hon. Geo. F. Longan, Judge.</p>

Prohibition. (1) The abutting property-owners, or any of thein, have not consented to the construction, maintenance or operation by respondent railroad company of a general railroad for the conveyance of freight, or of other than a street railway, and without that consent respondent railway company cannot operate such a railroad on or across any streets of St. Louis, and therefore cannot condemn property for such a railroad in that city. R. S. 1899, sec. 6119.

— Hon. Jno. P. Butler, Judge. (1) The probate court has no power or authority to appoint a referee to hear and determine controversies pending before that court; and the stipulation signed by the parties and filed in these proceedings could not and did not confer upon said court such power and authority.

Louis County Circuit Court. — Now. John W. McElhinney, Judge. (1) Where the owner of mortgaged property at his own expense insures his property for the joint benefit of himself and the holder of the mortgage, and the property is destroyed while the policy is in force and effect as to the interest of both mortgagor and mortgagee, and the insurance is paid to the mortgagee, equity will not subrogate the insurance company to the rights of the holder of the mortgage.

<p>1. MUNICIPAL ORDINANCES: Nuisances. An ordinance on the subject of general immorality or obscenity of conduct, which embraces the same matters covered by a State statute on the subject, cannot include offenses not embraced in the statutes, or outrun the statute, unless there is something in the city’s charter that authorizes such an ordinance.</p> <p>2. -: Obscene Advertisement. An ordinance of St. Louis, making it a misdemeanor to publish the advertisements of a certain class of physicians “purporting to give information as to the treatment of venereal or private or womb diseases, or impotency, self-abuse, sterility or any disease pertaining to the genital organs,” is invalid, since the statute requires the city ordinances to be “in conformity -with the State law upon the subject” and to be restricted thereby, and the statute prohibits only an “obscene, lewd or lascivious book, pamphlet, picture or print or other publication of an indecent or scandalous character,” and the advertisement prohibited by the ordinance does not come within the meaning of these terms, and there is no charter provision authorizing such an ordinance, the provision authorizing the city to “regulate doctors” not being sufficient for that purpose.</p>

— lion. Charles I). Stewart} Judge. The court should have peremptorily instructed the jury to return a verdict for the defendants. Section 10188, R. S. 1899, provides that in surveying town lots the surveyor shall give the distances to the points or lines from which he established the lines of the lots, and shall perpetuate the same by measuring the distances to houses standing in the immediate vicinity, or by prolonging the lines to the curbstone and cutting notches therein.

— How. H. L. McCune, Judge. (1) Robert Young bad a perfect right to rescind tbe contract, under tbe admitted facts and circumstances of tbe case. Terte v. Maynard, 48 Mo. App. 463; Ryan v. Dunlap, 111 Mo. 610; ITartzell v. Crump, 90 Mo. 638; Lanitz v. King, 93 Mo. 513; Hollmann v. Conlon, 143 Mo. 369; 2 Addison on Contracts, p. 403, sec. 895; Mackey v. Ames, 31 Minn. 103; Ramsay v. West, 31 Mo. App. 676; Bales v. Roberts, 189 Mo. 49'.

— Eon. Jas. D. Barnett, Judge. (1) The circuit court erred in excluding testimony tending to prove that the defendant had waived the provisions of the contract requiring a written demand for an extension of time on account of alterations in the work, obstructions, interferences, etc. Proof of waiver is admissible under an allegation of performance of a contract. Andrus v. Insurance Assn., 168 Mo. 161; Suess v. Insurance Co., 193 Mo. 570.

— No». James D. Barnett, Judge. (1) (a) The servant assumes all risks of injury resulting from acts done in violation of the master ’s orders and rules. Francis v. Railroad, 110' Mo. 387; Schaub v. Railroad, 106 Mo. 74; Alcorn v. Railroad, 108 Mo. 81; Zumwalt v. Railroad, 35Mo.

— Ron. F. H. Trimble, Judge. (1) The only question presented to this court on this appeal inyolves the right of Judge Trimble to hear and determine this case. (2) This proceeding was a civil suit within the meaning of the law regulating changes of venue. State ex rel. v. Riley, 203 Mo. 175.

— Hon. G. W. WanamaJcer, Judge. (1) The petition fails to state facts sufficient to constitute a cause of action. The deed in question being a regular warranty deed with all the usual covenants, having been voluntarily made and filed for record by plaintiff, uninfluenced by appellant or any other person, no extrinsic evidence of the plaintiff’s intentions or purpose in making the deed was admissible.

— Hon. Howard Gray, Judge. The act complained of (Laws, 1901, p. 115), undertakes to tax litigants in the circuit court of counties composing a circuit, having two judges and no criminal court, three dollars which shall he paid into the county treasury. The act did not at the time of its passage, never has and likely never will, apply to any other county in the State than Jasper county.

— Hon. Hugh Dabbs, Judge. (1) Section 2864 of the Damage Act, as amended in Laws 1905, pp. 136-7, is unconstitutional, because in actions against railroad companies it delegates to the jury the fixing of a penalty, on a sliding scale, at any sum from $2000 to $10,000, within their discretion, without furnishing any lawful basis for such discretion.

— Hon. Wm. G. Ellison, Judge (1) The proof to overcome the presumption of the truth of the recitals in the notary’s certificate of acknowledgment to the-deed of trust must be clear and convincing beyond a reasonable doubt. 1 Am. and Eng. Ency. Law (2 Ed.), pp. 560, 561; 1 Cyc., pp. 622, 623, 624, 625; 1 Ency. L. and P., pp. 926-934; Elliott v. Sheppard, 179 Mo. 382; Swiger v. Swiger, 58 W. Ya. 119; Plagies v. Tanner, 11 Ohio Cir.

<p>APPELLATE JURISDICTION: Injunction. An appeal from a judgment enjoining a street railway company from laying its tracks in a street in front of plaintiff’s property, his only complaint being that his property will be impaired and its value reduced in an unnamed sum, and there being no attempt by defendant to take or condemn any of his property, is to the Court of Appeals.</p>

Louis City Circuit Court. — Eon. Warwick Hough, Judge. The action of the court, in giving at defendant’s request instruction 6 and in modifying plaintiff’s instruction 1 was erroneous because: (a) The existence of a duty and its violation followed by injury gives a right of action. Longan v. Weltmer, 180 Mo. 322; Graney v. Railroad, 140 Mo. 90; Blair v. Railroad, 89 Mo. 334; Atkinson v. Railroad, 90 Mo. App. 489; Wheeler v. St. Joseph Co., 66 Mo. App. 260.

<p>1. APPELLATE JURISDICTION: $7500: Discrimination in Freight Rates. Where the appeal is by plaintiffs from a judgment in favor of a railroad, in which the petition charges unlawful discrimination in freight rates and extra charges, and laying their damages at $2500, and asking that the damages be tripled, in no case is the amount in dispute in excess of $7500; and as the validity of the statutes upon which the suit is based is not assailed and there is no Federal question involved, the appeal is to the Court of Appeals, although taken prior to the passage of the Act of 1909, but the cause being not submitted until after that act went into effect.</p> <p>2. -: -: -: Attorney’s Fees. The attorney’s fees, which the statute permits to be taxed “as costs” in such suit in case the judgment is for plaintiff, and which the petition asks for, cannot be added to the claim of $7500, so as to give the Supreme Court jurisdiction over the appeal.</p>

— Ron. Jno. P. Butler, Judge. (1) The trust deed under which the foreclosure sale was made is not before this court for construction. The provisions of said trust deed were not preserved in the bill of exceptions and the question as to whether the sheriff, Magee, was the proper person under the provisions of the trust deed to conduct the foreclosure sale, is not before this court for review.

Habeas Corpus. (1) Tbe right of appeal did not exist at common law, and is enjoyed now solely by reason of statute. The privileges and immunities ancillary thereto, including stay of execution and bail pending appeal, are likewise of statutory creation, and are limited to the number and kind given by statute. In re Baurer, 112 Mo. 231; State v. Brown, 153 Mo. 578; Ex Parte McNally, 199 Mo. 516; State v. Thayer, 158 Mo. 36.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. The deed in question from Kilpatrick and wife to Mary Jamison is dated October 18, 1888.

<p>1. BILL OF EXCEPTIONS: Part of Record. A bill of exceptions becomes a part of tbe record only when the court orders it to be filed and made such, and that fact cannot be shown by recitals in the bill itself.</p> <p>-: Judgment: Motion for New Trial: How Shown. Neither the judgment rendered, nor the orders overruling the motions for a new trial and in arrest, can be shown except by the record proper. A recital in the bill, ahead of the judge’s approval thereof, that a motion for a new trial was overruled, and in the bill alone, is not sufficient to show either that the motion was filed or that it was overruled. Nor is a recital in the bill alone that judgment was rendered for respondent sufficient to show that fact. Those facts must be shown by the. record proper; and as a part of the record proper, where the appeal is by the short method, will be considered the transcript of the judgment on file with the clerk, although it is nowhere set forth in the abstract.</p> <p>3. JUDGMENT: Not Responsive to Pleadings. Where the purpose of the suit, as shown by the pleadings set out in the abstract, was to set aside a deed, on the ground that defendant obtained it by fraud, with a prayer as an incident that an account for rents and profits be taken, and the judgment rendered, as shown (not by the abstract but) by the certified copy thereof on. file with the clerk, does not set aside the deed, but renders a monetary judgment only, it cannot stand but will be reversed, although no part of what purports to be the bill of exceptions can be considered.</p>

Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. (1) The quashing of the order of publication was error.

— Hon, J. L. Smith, Special Judg« (1) Where specific acts of negligence are pleaded, it devolves upon the plaintiff to prove the acts of negligence pleaded, and, if lie recover at all, it must be on the specific acts of negligence pleaded, and not otherwise. Orcutt v. Cent. Bldg.

— Eon. Jno, P. Butler, Judge. (1) The gist of the complaint of the plaintiff is that defendant published that plaintiff had made' a false affidavit under the Corrupt Practices Act, and thereby charged the plaintiff with the crimes of perjury and of making a false affidavit. The petition alleged in one count that defendant in the publication pleaded had charged plaintiff with the two independent and separate crimes of perjury and of making a false affidavit.

Habeas Corpus, Tbe law.is invalid as an unauthorized invasion of. the liberty of the citizen. The State is not infringing upon that liberty when it exercises its police power to confine the freedom of the individual for the protection of the State or of the safety, health, morals or welfare of the general public.

Louis City Circuit Court. — Eon. Daniel D. Fisher, Judge. (1) The demurrers to the evidence should have Seen sustained: both that offered at the close of plaintiff’s Case, and that offered at the close of the whole case. Defendant owed plaintiff no duty, and therefore did not fail in the performance of any duty, (a) Duty lies at the foundation of negligence; and if defendant owed plaintiff no duty, it is not liable to plaintiff.