Volume 231 — Missouri Reports

— lion. E. E. Porterfield, Judge. (1) A physician is registered under the Laws of 1901, who filed a diploma, and caused his name to be entered on the “Roll of Physicians,” in the office of the clerk of the county court, and received a license signed by the county clerk on May 15, 1880, said acts being in conformity with the requirements of the Laws of 1877. By complying with the requirements he became a “registered” physician within the meaning of the law.

— Hon. L. B. Woodside, Judge. (1) The information in this case is insufficient to support the judgment, and it is fatally defective in that it fails to charge the wounding was done feloniously. The homicidal act itself must he charged to have been done feloniously, and this information, does not meet that requirement of the law. State v. Green, 111 Mo. 585; State v. Williams, 184 Mo. 261; State v. Johnson, 191 Mo. 177; State v. Woodward, 191 Mo. 617.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) It is respectfully and earnestly urged tliat the evidence in the case fails to bring the appellant within the terms of the statute upon which the indictment is bottomed.

— Hon. A. W. Lincoln, Judge. The prosecutrix was not seduced, because, as shown by the evidence, the defendant had not gained her affections and her mind was polluted at the time of the first act of intercourse and when he began going with her. And before the defendant should have been convicted the evidence must have shown that he gained her affections and deceived and drew her aside from the path of virtue. State v. Reeves, 97 Mo. 668.

Louis City Circuit Court. — Hon. Geo. H. Shields, Judge. (1) The indictment was drawn under Seie. 4441, R. S. 1909 (2120 j., Laws 1903, p. 158). It conforms to the form approved in State v. Cummings, 206 Mo. 623. It is not subject to the criticism to which the information was subjected in State v. Keating, 202 Mo. 201. The Cummings case was followed in the case of State v. Tiernan, 223 Mo. 147.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) In so far as the charging part of the indictment .in this case is concerned, it is a rescript of the indictment condemned in the case of State v. McGrath, 228 Mo. 413. (2) The proof of the holding of a general primary election in St. Lonis and of the particular offices to be filled thereat was properly made by parol. State v. Tiernan, 223 Mo. 147. State v. Exnicious, 223 Mo. 68.

— Now. W. N. Evans, Judge. The record proper shows that the judgment of sentence was entered immediately after the return of the- verdict of the jury on September 20, 1909, and the motion for new trial was not filed until Wednesday, September 22, 1909. The motion for new trial must be filed within four days after the return of the verdict and before judgment. This is statutory and mandatory. R. S. 1909, sec. 5285; State v. Pritchett, 219 Mo. 696; State v. Fraser, 220 Mo. 34.

— Hon. Henry L. McCune, Judge. (1) Instruction 3A, given on behalf of defendant, is the law, was properly given in the first instance, and the court erred in granting a new trial to plaintiff on account of said instruction. Heinzle v. Railroad, 213 Mo. 102; Reno v. Railroad, 180 Mo. 469; Cbrnovski v. Railroad, 207 Mo. 263; Gabriel v. Railroad, 130 Mo. App. 651; Boland v. Railroad, 36 Mo. 484; Spillane v. Railroad, 135 Mo. 420.

— Hon. David H. Eby, Judge. The pleadings made a ca,se of controversy simply and purely as to the legal title to land. Held: that all limitations on the right which were known and recognized at the time of the adoption of the Constitution were thereby affirmed and made continued limitations on the right, yet nevertheless, the above section by its very terms forbids all restriction of this right to any narrower limits.

— Eon. L. B. Wood-side} Judge. (1) It is undoubtedly true that probate court judgments are not subject to collateral attack, unless it appears to have exceeded… Held: so far as we can find, that -a sale held at public auction 'in violation of an order to sell at private sale is valid. It must be conceded that a probate court, subsequent to a term at which it rendered a judgment, has no power to alter or revise such judgment. Peake v. Read, 14 Mo. 79; 1 Woerner’s Am. Law Adm.

Habeas Corpus. (1) A local option law that authorizes the people of only a limited portion of the state, or of every portion of the state except specified parts thereof,- to avail themselves of it, is not a valid law, for laws must be made by the Legislature and must be co-extensive with the territorial limits of the state, in respect to the powers conferred or the burdens imposed.

<p>Appeal from Schuyler Circuit Court. — Ho». Nat M. Shelton, Judge.</p>

— lion. Jno. P. Butler, Judge. (1) The motion to strike out portions of reply was in effect a demurrer thereto, and should he s.o treated, and therefore a hill of exceptions was not necessary to preserve said motion or the court’s action thereon. Those things are all matters of record, are reviewable without any hill of exceptions, and an excep-, tion to such judgment is out of place in the record proper or in the hill of exceptions.

<p>1. APPELLATE JURISDICTION: Amount in Dispute: Sum Sued for With Interest. Where the petition is on a contract, express or implied, and the allegation is that the defendant is indebted to plaintiff in a certain sum, with interest from a certain date, and prays judgment for both, the Supreme Court has jurisdiction oyer the appeal, if the judgment is for defendant, and if the amount of the debt (principal and interest), at the date of the judgment, would be, according to plaintiff’s allegation, in excess of $7,500. In such case the interest demanded is a part of “the amount in dispute.”</p> <p>2. BUILDER'S CONTRACT: Breach: Delay in Work. The owner of the property does not commit a breach of the contract by making a demand, for delay in finishing the building, of twenty dollars a day, the amount named in the contract as liquidated damages for such delay, although the court, at the trial, does not, on a showing of justifiable cause for delay, allow that counterclaim.</p> <p>3. -: -: Withholding Deed to Other Property. And where the contractor agreed to furnish all the materials and labor and preserve the building from mechanics’ liens, but permitted same to be run, the owner did not commit a breach of the contract by withholding from defendant, till those liens were paid by the contractor, a deed to other property which the contractor had agreed to accept as part payment for the work.</p> <p>i. -:-:-: Promise to Pay Taxes. And where • the escrow deed to the other property, to be taken by the contractor in part payment for the building, relieved the owner of the obligation to pay the taxes, general and special, for the current year, was accepted by the contractor, and afterwards, before he signed the agreement to accept the property as part payment, he read it, objected to it, and the owner agreed to pay the taxes, the owner did not commit a breach of the contract by withholding the deed until the contractor paid the mechanics’ liens he had agreed to pay, where there is no evidence of any breach of the agreement to pay the taxes.</p> <p>5. -: -: -: Sold Under Mortgage. The contractor cannot complain that the property he agreed -to accept as part payment has been sold to a stranger under a mortgage which he assumed to pay.</p>

— Hon. Howard Gray, Judge. (1) The points surrounding this case hinge upon the declaration of law as given by the court, which is as follows: ‘ ‘ The court declares the law to be that if prior to entering into the new contract dated February 18,1901, changing the terms of said lease and reducing the royalty, the plaintiffs, or their superintendent, Strickler, had knowledge of the falsity of the alleged misrepresentations made by Pain, then plaintiffs waived the fraud and…

— Hon. Henry L. McCme, Judge. (1) The relation of master and servant did not exist between the respondent and the defendant company. The respondent was not employed nor paid by the appellant company, and had no authority or control over him in the performance of his work.

<p>1. TRANSFER OF CASE TO SUPREME COURT: Last Previous Decision: Controlling. It is only when a judge of a Court of Appeals deems one of its decisions to be contrary to a previous decision of any of the courts of appeals or of the Supreme Court, that the cause can be certified to the Supreme Court. If the decision of the Court of Appeals is deemed to be in conformity with the last decision of the Supreme Court, but said last decision is deemed wrong or ill-considered, or contrary to prior decisions or not “the controlling one,” there is no authority for the transfer of the case to the Supreme Court.</p> <p>2. -: — ; -: Power of Circuit Court to Tax Costs. The trial court had held that a trust company could interplead (its right to do so being resisted), and pay the fund into court and be discharged, and recover its costs to be taxed, and a reasonable attorney’s fee, the amount thereof to be thereafter determined, and that the plaintiff and the other defendants inter-plead for the fund. On appeal*to the Supreme Court, this judgment was affirmed; and thereafter the circuit court awarded interpleader certain costs and an attorney’s fee, and from that judgment an appeal was taken to the Court of Appeals, where it was contended the trial court had no jurisdiction, at a subsequent term, after the former final judgment, to render . the judgment for costs and fees. The Court of Appeals affirmed the judgment, but one of the judges dissented, and in a dissenting opinion expressed the view that the decision of the Supreme Court on the former appeal, which was “the last previous” ruling of the Supreme Court on the subject, was in conflict with prior decisions of the Supreme Court, and was “not to be considered by the Court of Appeals as- a controlling authority,” and therefore caused the case to be certified to the Supreme Court. Held, that in the opinion of said judge the decision of the Court of Appeals was in harmony with “the last previous ruling” of the Supreme Court on the point, and therefore the Supreme Court acquired no jurisdiction of the cause.</p>

<p>1. APPELLATE JURISDICTION: Constitutional Question: Discrimination Against Citizens of Another State. When sued by a citizen of this State upon a policy issued to a citizen of this State, a fraternal beneficiary association, organized under laws of another State, cannot be heard to complain that the statute, which prohibits recovery on an insurance policy in case of the suicide of the insured, can be invoked as a defense only by companies organized or licensed to do business in this State, and so construed is unconstitutional and void, in that it grants to policy-holders who are citizens of this State special rights, privileges and immunities not given to policy-holders who are citizens of another State. The discrimination against policyholders of another State is not up for adjudication in 'such case, and a defendant foreign company which has failed to comply with the laws permitting it to do business in this State, cannot raise the point for them. And it having been held in another case against the same defendant that the defendant cannot raise any such constitutional question, and there being no other ground upon which the Supreme Court can have jurisdiction over an appeal from a judgment for $2217, the case is transferred to the Court of Appeals.</p> <p>2. - — : Conflict in Decisions of Courts of Appeals. A case having been appealed to the Supreme Court over which it had no jurisdiction when it was lodged here, will not be retained on the ground that the two courts of appeal have rendered antagonistic opinions on some of the.vital questions up for judgment.</p>

<p>1. NOTICE: Modification of Judgment: Nunc Pro Tunc Order. Defendants upon whom proper summons has been served and who have filed motions for a new trial and in arrest of judgment, are, in contemplation of law, in court, at the time a judgment is set aside and a proper judgment, nunc pro^ tunc, at the same term, is rendered.</p> <p>2. -: -: -: Appearance. Even if defendants are entitled to notice before a judgment can be set aside and a nunc pro time judgment rendered, at the same term, they waive all objections for want of notice, by actually appearing, and filing a motion to set aside the nunc pro tunc judgment.</p> <p>3. JUDGMENT: Aided by Antecedent Entry. In case of doubt as to the exact meaning of a judgment, an antecedent record may be considered in determining its effect. Where a judgment was rendered and at a later date of the term set aside, and another judgment, nunc pro tunc, was entered, the former judgment set aside may be considered in determining the legal effect of the latter judgment.</p> <p>4. -: In Tax Suit: Not Rendered Against Defendants. A judgment for taxes paid by plaintiff in ejectment is not invalid because it simply renders judgment for plaintiff for the amount of taxes paid by him, but does not mention the parties against whom plaintiff recovers, and does not say “against defendants.” If it names the plaintiff and defendants, is made a lien on the land, which it describes, and grants to plaintiff a special execution, it is sufficient, and (under the charter of Kansas City, and) usually the interest and estate of all persons made parties will be conveyed by a proper sale under execution. In tax suits, the judgment is not-a personal, one against defendants, but one against the land, upon which it is proper to make it a lien.</p> <p>5. -: Final Suit in Ejectment: Judgment for Taxes. Plaintiff in the first count of his petition sued in ejectment, basing his right upon a tax deed, and in the second count asked that if said tax deed were held to be void, he might have judgment for the taxes paid by him to the sheriff and since the deed was executed. At a trial in 1902 the tax deed was adjudged void, and judgment rendered for defendants for costs, on the first count of the petition; and thereupon plaintiff was permitted to amend his petition, brihgipg in new parties and asking for judgment for the taxes IvaW., and the cause was continued, and in 1904 the court retired judgment in plaintiff’s favor for the amount of taxes paid by him. Held, that this last judgment was a final judgment. The second count of the original petition was premature, and did not state a good cause of action since plaintiff’s right to recover thereon was dependent upon his failure to recover upon the first count; but the amended petition was in effect a new cause of action, and defendants appearing thereto, the judgment rendered thereon was not interlocutory, but fina i ■</p> <p>6. .-: Certificate of Purchase at Tax Sale. The charter of Kansas City does not require the sheriff to issue a certificate of purchase to the purchaser at a tax sale. Even if it did it could not invalidate the execution under which the sale was made. It co.uld at most only affect the sale.</p> <p>7. -: Amending Petition After Publication to Non-Residents: Appearance. Appearance by non-residents waives whatever error there may be in amending the petition after publication of the order of summons to them.</p> <p>8. SPECIAL TAX DEED: Clerical Error in Report as to Name. Where after a sale upon special -execution under a judgment for special taxes, a certificate of purchase was given to Bryce Smith and subsequently, on failure to redeem, a deed was executed to him, the fact that the sheriff,, in his report of the sale, said Bryce Smith was the highest bidder, but the sale was made to B. Howard Smith, does not affect the validity of the deed to Bryce Smith. The recital in the report that the sale was made to B. Howard Smith was clearly a clerical error.</p> <p>9. RES ADJUDICATA: Defenses Raised in Another Proceeding: Ejectment. Where defendants not only could have raised, but did raise, in a former suit all the questions presented a's defenses in this ejectment suit, and those questions were there adjudicated by a court of competent jurisdiction, they are bound by the judgment therein.</p>

Francois Circuit Court. — Ron. Chas. A. Killian, Judge. (1) The petition, as shown by the answer and by' the proof adduced by the plaintiff, showed that there was a defect of the parties in interest, and until all parties in interest were brought into court no judgment could be rendered. R. S. 1899', secs. 543, 544 and 650.

— Non. W. N. Evans, Judge. (1). The true owner’s title to land is not affected by tax proceedings unless they are brought against him; and it matters not that the proceedings were brought against the record owner, if in recording the owner’s'deed the recorder made a mistake and recorded the name erroneously. Chamberlain v. Blodgett, 96 Mo. 482; Troyer v. Wood, 96 Mo. 478.

— lion. Alex. E. Waller, Judge. The Statute of Limitations is not a defense in this case, for the reason that there, was fraudulent concealment by the treasurer, W. B. Thomas, of the plaintiff’s ■ cause of action.

<p>KINDRED ADJUDICATION. .On the same facts, the law is the same and the judgment the same. Therefore, for the reasons set out in State ex rel. v. Yates, ante, page 276, the judgment herein, holding that an action on the bond of the treasurer of a state hospital to recover moneys stealthily converted to his own use, is barred in three years and that there was no such fraudulent concealments of his peculations as prevented the Statute of Limitations from running, is affirmed.</p>

<p>APPELLATE JURISDICTION: Suit on Bond. The Supreme Court does not have jurisdiction of an appeal from a judgment in favor of defendant's in a suit brought at' the relation of the State on a bond for $30,000 against the sureties, alleging that the treasurer of a state hospital converted to his own use $6901.68 during the two years which the bond embraced, and praying for a judgment of forfeiture in the penal sum of $30,000, and that execution be awarded for $6901.06 as damages. The “amount in dispute” in such case is not the penal sum nominated in the bond, but the shortage of the treasurer or the damage's to be assessed; and that being less than $7500, the case is transferred to the Court of Appeals.</p>

Hermann Brumbaok, Judge. (1) Where plaintiff’s own evidence shows such contributory negligence as to defeat his right of action, it is the duty of the trial court to so declare as a matter of law. Hudson v. Railroad, 101 Mo. 13; Corcoran v. Railroad, 105 Mo. 399; Hudson v. Railroad, 123 Mo. 445; Sindlinger v. City of Kansas, 126 Mo. 315; Barton v. Railroad, 52 Mo. 258 ; Weber v. Railroad, 100 Mo. 194; Powell v. Railroad, 76 Mo. 80; Wendall v. Railroad, 100 Mo.

- — Hon. Samuel Davis, Judge. The petition does not state facts to constitute a cause of action. The court erred in refusing a jury trial. The decree is beyond the issues joined in the pleadings and is not justified by the facts set forth in the petition, answer and reply, and goes beyond the statute under which the suit is brought. Bu,rk v. Pence; 206 Mo. 315.

— Son. G. A. Mosman, Judge. (1) The husband’s right of curtesy adheres in and to the lands belonging to the deceased wife at the time of her death, whether she held the title to the lands in her own name, or whether the title was held in the name of a trustee for her use and benefit, if the other requisites exist; and in this case it is admitted that they did and do exist. Tremmel v. Kleiboldt, 75 Mo. 255; Tremmel v. Kleiboldt, 6 Mo.

Louis County Circuit Court. — So». Jno. W. McElhinney, Judge. (1) All work d.one by appellant was fully covered by bis contracts for tbe improvement of tbe roads, same to be done under tbe supervision and direction of tbe road commissioner, or bis authorized assistant, and tbe price per cubic yard for tbe work done fixed.

<p>1. APPEAL: Abstract: Motion for New Trial. The abstract of the record proper mu'st show the filing and overruling of the motion for a new trial. A recital in the bill of exceptions that such motion was filed and overruled does not cure the omission of such recital from the record proper, for the bill is not the proper receptacle for such matters.</p> <p>2. -: -: Bill of Exceptions. If the record proper does not show that the bill of exceptions was filed, the evidence cannot be considered on appeal; and if no portion of the printed abstract purports to be the record proper, it cannot be held that the abstract 'shows that a bill of exceptions was filed.</p> <p>3. ———: -: Matter of Record and Exception.' The printed abstract should distinguish between matters of record proper and matters of exception. A failure to do so is fatal to the appeal.</p> <p>4. -: -: Arrangement and Printing of Points and Argument. So long as there is a substantial compliance with Rule 15, an objection to the form of the brief or the order of argument will not defeat the appeal. Merely because appellant’s brief does not set out the points in numerical order, together with a citation of authorities under each point, and does not separate points from argument, the appeal will not be dismissed.</p> <p>5. -: -: Judgment. The abstract of the record proper must show that a judgment was rendered, or the appeal will be dismissed.</p>

— lion. F. G. Johnston, Judge. (1) The defendant’s answer pleading the Statute of Frauds to avoid the contraet set up in the petition is an admission of the contraet relied upon by the plaintiff, and the plea that decedent’s estate is solvent, and plaintiff has an adequate legal remedy to recover for the services performed, is likewise an admission of the consideration for the contract alleged. Jones v. Rush, 156 Mo. 364; Cushing v. Powell, 130' Mo. App. 576.

Louis County Circuit Court. — No». John W. McElhinney, Judge. (1) The defendant corporation, hy its board of directors, authorized the advisory committee to sell the Russell farm at such time, such price and terms as met their discretion. The finance committee, having power to seh the farm, had power to appoint Mittleburg agent to sell. R. S. 1899', sec. 971.

— Hon. Louis Hoffman, Judge. . . (1) As shown by the record there is not a word of evidence that tends to show or to intimate that the man Corbett had any knowledge, or even grounds, from which to suspect that Dr. Simonds or anyone else had performed a criminal operation, or any other kind, on Anna Bell; and as far as the record shows, he did not know and he never saw the defendant Casto.

— Hon. B. G. Thur- ' man, Judge. (1) The verdict is definite, certain and responsive to the issues joined'. (2) Where there is no probability that if the absent witness had appeared and testified, as stated in the affidavit for continuance, it would have changed the result of the trial, the trial court cannot be convicted of error in overruling the application for continuance. State v. Temple,-194 Mo. 250; State v. Wor- ■ rell, 2fi Mo. 256; State v. Kindred, 148 Mo. 281.

— Hon. Francis II. Trimble, Judge. (1) Plaintiff was engaged in' tearing down old work for the reason that it was worn out and had to be replaced. Conditions with regard to safety changed continually as the work progressed. The unsafe condition, if there was an unsafe condition, arose on aocount of work done by plaintiff. F'or these reasons the rule that the master must furnish a safe place to work does not apply, and the risk was one which was assumed by plaintiff.

Prohibition. Peremptory writ awarded. (1) In the construction of any statute, the history and reason for its enactment may always be invoiced in its construction. State v. Balch, 178 Mo. 409; Black on Interpretation of Laws, p. 212. (2) The act approved June 1, 1909, is inoperative and void in that the title is not expressive of the subjects contained. St. Louis v. Wortman, 213 Mo. 139; St. Louis v. Weitzel, 130 Mo. 616; Cooley on Constitutional Limitations (7 Ed.), p. 205.

Certiorari. (1) The transactions shown in the record between the Missouri railroad companies and the Illinois company are tantamount to a consolidation, regardless of the name applied to such transaction, and by virtue of such consolidation the Chicagp, Burlington & Quincy Railroad Company became a domestic corporation in respect to all of its acts in Missouri.

<p>1. CONSTITUTIONALITY OF STATUTE: Amended by Invalid Act: Insane Persons: Jurisdiction of Probate Court. The decision in Redmond v. Railroad, 225 Mo. 731, holding that “the act of the General Assembly entitled, ‘An act to amend section 3650, chapter 39, of the Revised Statutes of 1899, entitled Insane Persons,’ approved March 25, 1903, is unconstitutional”, was meant, as is shown by the context, to declare void only the proviso, which alone constituted the amendment of 1903,. and which declared that the probate court shall have no jurisdiction to inquire into the insanity of any person who is the owner of no property. But even if it was meant to declare invalid the entire Act of 1903, that did not invalidate Sec. 3650, R. S. 1899, which it purported to amend; for that act contained no repealing clause, and the rule is that an unconstitutional enactment will not repeal a former valid law by implication. Section 3650 is valid, and probate courts have jurisdiction under it to hold and determine lunacy inquiries.</p> <p>2. PROHIBITION: Jurisdiction of Person: Power of Court to Decide. The probate court has jurisdiction over the subject-matter of a lunacy inquiry; and where its jurisdiction over the person of the one alleged to be insane, is dependent upon that one’s being present within its territorial jurisdiction, a writ ' of prohibition will not lie to prevent it from investigating the necessary facts to determine its own jurisdiction over the person; nor can prohibition be granted to prevent the entry of the court’s judgment, whether it be right or wrong. Where the jurisdiction depends upon facts, the probate court has a right to determine its jurisdiction from the facts before it, and prohibition will not lie unless the facts are admitted or are not disputed.</p> <p>3. -: -: -: Found to Exist. It is to be presumed that-the probate court inquired into its own jurisdiction and passed upon the truth' or falsity of the affidavit alleging the insane person was a resident of the county; and having entered judgment adjudging her to be insane, a writ of prohibition will not lie to root up that judgment or declare it invalid.</p> <p>4. --: -: -: Motion to Set Aside: Res Adjudicata. Where the relator, after the probate court had entered judgment finding her to be insane and finding her to be in the county within the meaning of the laws, filed a motion to set aside that judgment on the ground that the court had no jurisdiction of her person, in that she did not reside in the county; and that motion was tried upon evidence and overruled; and from that ruling an appeal was taken to the circuit, court, and from it to the Court of Appeals, and it was held, by each, that no appeal would lie from the probate court in a lunacy inquiry case, the judgment of the probate court must stand in full force and is final on the point, whether the holding of the Court of Appeals was correct or erroneous.</p> <p>5. -: -: -: Admission in Return. The return of the probate judge to the writ of prohibition, avers that relator’s husband was for one whole year a resident of another State, and that during that year .the proceedings were had in the probate court by which she was adjudged to be insane and a guardian appointed; and it would seem she was not in the county, within the meaning of the law. I-Ield, that such an admission by the judge in his return, will not invalidate the solemn judgment of the probate court theretofore rendered, finding, in effect, that it had jurisdiction over her person and estate, and will not justify a permanent writ of prohibition.</p> <p>6. -: . Judgment Already Entered. Prohibition will not lie to undo a final judgment already entered long before the writ was applied for, unless such judgment is void upon its face. It simply stops the doing of that which should not be done.</p> <p>7. -: -: Lunacy Inquiry: Incorrect Given Name. Where relator was married to Crouse under the name of Maggie Jessie Bulfin and she was personally served in a proceeding charging Jessie B. Crouse to be insane, and appeared at the hearing, the slight discrepancy in the given name does not affect the validity of the judgment.</p> <p>8. -: -: -: Facts of Case. Relator was married in 1882, and she and her husband resided in the city of St. Louis up to January, 1907, and while residing there she was treated for insanity from the year 1896. In 1905 her husband caused her to be confined in St. Vincent’s Asylum in St. Louis county. From January, 1907, to March, 1908, he resided in Pennsylvania, and never did reside in St. Louis county, nor did she at any time own any property in said county. Her mother died in 1904, leaving her an estate worth $2000, in the city of St. Louis, and in August, 1907, while she was an inmate of said asylum, proceedings were instituted in the probate court of St. Louis county to have her declared insane, and a guardian appointed. She was served personally with process, a guardian was appointed to represent her at the inquiry, she was adjudged insane, and a guardian appointed to manage her estate, and that judgment was not appealed from. Later a motion was filed to set that judgment asiije, on the ground that she was not in the county within the meaning of the laws, and because, therefore, the probate court had no jurisdiction over her person; evidence was heard in support of the motion, it was overruled, and an appeal was taken to the circuit court, and from it to the Court of Appeals, and in each it was held she was not entitled to an appeal. Held, that the probate court had jurisdiction over the 'subject-matter, and is presumed to have investigated the facts and determined it had jurisdiction over her person, and its judgment cannot be reached by a writ of prohibition, however erroneous may have been the various rulings, since the judgment is not void on its face.</p> <p>9. JURISDICTION: Insane Non-Resident: Actually In County. Held, by VALLIANT, J., in separate concurring opinion, in which a majority concur, that, as relator’s husband was a resident of Pennsylvania during the time she was confined in the asylum in St. Louis county and at the time the proceedings were instituted in that county and she was adjudged a lunatic, her legal residence was at that time in Pennsylvania and she was a non-resident, and therefore the probate court of that county, under the statute, had jurisdiction of the case.</p>

Prohibition. Peremptory writ awarded. (1) Under the agreed statement of facts, the defendant had no jurisdiction, for the reason that plain- - tiff was not so engaged in business in this State as to make its obligations, which were payable in Texas, “property, money, credits or effects” found in Jackson county, Missouri, as provided in said section 3840. Douglass v. Insurance Co., 138' N. Y. 209; Renier v. Hurlburt, 81 Wis. 24; Reiners v. Manf.

Court. — Hon. Joseph J. ’ Williams, Judge. (1) This court overlooked completely, in the former decision of this case, the fact that the plaintiff had purchased the machines themselves, as well as the contracts under which Ramlose held them, and based its decision on the question of the validity of the contract, ignoring entirely the title to the property. United Shoe Machinery Co. v. Ramlose, 210 Mo.' 631.

<p>For the reasons set forth in United Shoe Machinery Company y. Ramlos'e, ante, page 508, the action of the trial court in refusing- to sustain defendant’s motion to enter judgment for defendant non obstante veredicto, is sustained.</p>

Mandamus. •Writ absolute. (1) Tlie case of State ex rel. Held: provides, so far as is material to the matter in hand, that “For the purpose of erecting schoolhouses and furnishing the same in cities, towns and school districts, the board of directors shall be authorized to borrow money, and issue bonds for the payment thereof, in the manner herein provided,” etc. It nowhere appears in the…

Habeas Corpus. If the election is illegal, if the Local Option Act was not legally adopted, the process under which petitioner was arrested and detained was not authorized by any provision of the law, and habeas corpus will lie. R. S. 1899, sec. 3578; 2 Spelling, Extraordinary Relief, secs. 1205 and .1207; Ex parte Neet, 157 Mo. 527; In ,re Flukes, 157 Mo. 125; Ex parte Harrison, 212 Mo. 88; Ex parte Smith, 135' Mo. 223; Ex parte Marmadnke, 91 Mo. 228.

Louis City Circuit Court.- — Hon. Walter B. Dov,glas, Judge. (1) When properly construed, there is within the meaning of the charter no parallel street to Grand avenue on the west between 'Natural Bridge road and 'Penrose street. Louisville v. Asphalt Co., 102 S. W. 806 ; McGrew v. Kansas City, 64 Kas. 61; Charter of St. Louis, art. 6, see. 14.

<p>1. INJUNCTION AGAINST CONVEYANCE: Necessary Showing. Unless the vendee by his suit in equity can compel the vendor to convey to him, he cannot by injunction restrain the vendor from conveying to a third party. As a condition precedent to . such injunctive relief, the vendee’s' bill, when challenged by demurrer, must state facts entitling him to specific performance of a contract of sale; and that must be the holding, whether he may or may not have damages at law for a breach of a contract of sale.</p> <p>2. -: -■-: Pleading: Ownership. When the sufficiency of a pleading is challenged by demurrer, courts look not only to the material averments present, but to those absent. A petition by the vendee to enjoin the vendor from selling the land, should unequivocally allege that the vendor is the owner, else it does not state facts which would entitle the vendee to specific performance of his contract of sale, and therefore does not state a cause of action.</p> <p>3. -: -: -: Demurrer: Exhibits. A demurrer aims a blow at the face of the pleading and nowhere else. Exhibits attached to the petition against which a demurrer is leveled cannot be considered. So that where it is alleged that plaintiff by contract bought land from defendant, and those contracts are not set forth in full or their terms and covenants in substance, attached copies of the contracts cannot, when a demurrer is filed, be considered in aid of the petition’s allegations.</p> <p>4. -: -: -: Specific Performance: Vague Contract. Contracts for the sale of land, in order to he specifically performed by a court of equity, must not be vague and uncertain in terms and intendment, but clear, definite, certain and complete. A bill alleging that plaintiff’s assignor paid defendant $2000 down for the purchase of certain land, and agreed to pay $58,000 more “as soon as the title is perfected” — $18,000 in cash and the balance on or before five years — and no more— does not plead a definite contract — since it says nothing about abstracts of title, nothing about time for discovering and curing defects, nothing about what kind of title was to pass or what kind of deed was to be made, nothing about what was to be done if incurable defects in title were found, and nothing about security for the deferred $40,000 or interest— all of which are material in specific performance. And a supplemental agreement and a “proceeding in court” discussed in the opinion are still more defective in material terms, and the allegations in reference to them are mere conclusions of law, and not a statement of ultimate facts.</p> <p>5. -: Allegation That Title Is Not Perfect, But Vendor Claims It Is. A petition, which, in effect, alleges that defendant sold the land to plaintiff and agreed to perfect the title, but has not done so; that defendant now claims the title is perfect and threatens to sell the land to another, and prays that defendant be restrained from selling it, does not state a cause of action for injunctive relief.</p>

<p>1. NEGLIGENCE: Hastening Death. Even though deceased was afflicted with certain organic troubles which would have shortly terminated her life, yet if the negligence of defendant hastened her death, it is liable for damages.</p> <p>2. -: Conjecture: Different Causes of Death: D.emurrer. There was evidence that deceased had three or four organic troubles which might have caused her death, and there was evidence that her death was due to the negligence of defendant, whose driver, in charge of a vehicle, struck her, throwing her to the pavement. In addition to those facts she was down town in apparent good health at the time she was struck by the vehicle, on the 4th of the month; she went home and took to her bed and there remained until her death on the 20th; her attending physician testified that, whilst he did not know exactly what caused her death, in his opinion it resulted either from a hemorrhage of the brain or from the shock; and'opposed to this theory, was the testimony of the physicians who held the autopsy and discovered the organic diseases. Held, that the verdict for plaintiff was not based on conjecture, but there was substantial evidence to support it, and the demurrer to the evidence was properly overruled. [Overruling DeMaet v. Fidelity Storage, Packing & Moving Co., 121 Mo. App. 92.]</p> <p>3. -: Question; Cause of Death: No Objection. A question asked of a physician, “What in your judgment was the cause of the death of plaintiff’s wife?” should be ruled out upon proper objection, because it calls upon the witness to determine the issue which is to be left to the jury; but the objection, “The witness has not qualified as an' expert,” is without force, and being the only objection, no reversible error resulted from the question.</p> <p>4. -: Expert: Physician. A witness who is a graduate of a medical college and has been a regular practicing physician in this State for eight years, and attended the deceased twelve days of the sixteen she survived the injury, is a competent expert to testify what caused her death.</p>

<p>Appeal from Jackson Circuit Court. — Hon. W. B. Teasdale, Judge.</p> <p>Transferred to Kansas City Court of Appeals.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Henry L. McCune, Judge.</p> <p>Transferred to Kansas City Court of Appeals.</p>

— Hon. Wm. H. Martin, Judge. (1) The court erred in refusing defendant’s instruction in the nature of a demurrer offered at the close of plaintiff’s case. There is no evidence in this case that would warrant a court or jury to declare that the will in contest was not the true will of R. S. Crum.

<p>1. APPEAL: No Motion for New Trial: Supplemental Abstract. Where the printed abstract of the record, proper does not show that a motion for a new trial was filed, appellant will not be permitted, after respondent haa filed objections pointing out this defect in the abstract, to amend it, or to file a supplemental abstract, showing that the record of the trial court shows that such motion in fact was filed; and that must be the ruling, although the bill of exceptions filed in the cause shows that the motion was filed in due time. And where the record proper fails to show that a motion for a new trial was filed, ithe appellate court cannot consider that motion or any matter of exception.</p> <p>2. -: -: Record Proper: Quieting Title: Defective Judgment. Though the printed abstract of the record proper fails to show that any motion for a new trial was filed and for that reason the motion cannot' he considered in the appellate court, yet the record proper may be considered, a part of which is the judgment, and if it shows a judgment defective on its face it will be reversed. And-in a suit to quiet title, where the judgment adjudges plaintiiis (who are appellants) to be owners of ten-twelfths of the land, and recites that one defendant was duly served but made default, and adjudges to him one-twelfth of the land, subject to certain advancements, the judgment will be reversed as to him, but not as to the other defendant who did not default and to whom was adjudged another twelfth.</p>

— Hon. L. B. Woodside, Judge. Contracts may be read in the light of surrounding circumstances. Agan v. Shannon, 103 Mo. 661; West v. Bretelle, 115 Mo. 653. In the construction of deeds the controlling canon is to ascertain the meaning of the grantor, from the words he uses, in the light of the circumstances which surround him and attend his use of them. Long v. Timms, 107 Mo. 512; Gribson v. Bogy, 28 Mo. 478; Jamison v. Popiano, 46 Mo. 197.

<p>1. PLEADING: Duplicity. A petition which unites in one count several distinct, independent and unconnected matters, is duplicitous, or multifarious, which means the same thing; for instance, a petition which joins matters esc contractu, and ex delicto in the same count should be stricken out as in violation of the statute against duplicity (Sec. 613, R. S. 1899).</p> <p>2. -: -: Redeeming Under Mortgage: Attorney’s Fees: Conversion: Accounting. A petition which in one count asserts plaintiff’s right to redeem under a deed of trust, after foreclosure and purchase by the defendant mortgagee, and also demands judgment for attorney’s fees for services rendered by plaintiff to the same mortgagee,.both of which allegations state rights arising out of contract; and which also charges the conversion by said mortgagee of diamonds deposited with him, and the fraudulent conveyance by the mortgagee of the property covered .by said deed of trust, to other defendants with knowledge, which are matters ex delicto, is duplicitous, and should be stricken out, although all these things seem to be brought in as parts of a bill for an accounting.</p> <p>3. -: -: Amendment: Duplicate. Where plaintiff’s petition is adjudged duplicitous and he is given leave to file an amended petition, but instead of doing so files a duplicate of the one stricken out, the court should strike this last from the files, and enter judgment for defendant.</p> <p>4. APPEAL FROM RULING ON MOTION: Several Grounds: Presumption. Where two or more grounds are assigned in a motion for striking out a petition, and the motion is sustained, with no designation of the ground on which the ruling is based, it will not be presumed on appeal that the court sustained both grounds. [Separate Concurring Opinion by GRAVES, J., in which majority concur.]</p> <p>5. PREJUDICE OF JUDGE: Power to Pass on Motions: Change of Venue. The fact that a judge declares himself prejudiced against a litigant does not of itself, in the absence of an application for a change of venue, absolutely disqualify him to pass upon a motion attacking the sufficiency of such litigant’s pleading.</p>

Louis County Circuit Court. — No». Jno. W. McElhinney, Judge. (1) Errors on the face of the record will be reviewed though there is no bill of exceptions. Tower v. Moore, 52 Mo. 118; State v. Griffith, 63 Mo. 545; Ryan v. Growney, 125 Mo. 474. The question whether the petition states a cause of action may be raised the first time on appeal and need not be saved by a bill of exceptions. Sheehan v. Simms, 28 Mo. App. 64.

— Hon. J. C. Sheppard, Judge. (1)- The petition for the sale of. the property of the estate of the plaintiff’s, father did not conform to the requirements of See. 147, R. S. 1879. (2) The sale made pursuant to the petition conveyed no title to the purchaser at all, for the reason that the said land was sold for less than three-fourths, of its appraised value. R. S. 1879, sec. 166.

<p>1. DAMAGES: Good Faith in Offer to Perform: Demurrer. Whether or not plaintiffs’ offer to perform their contract of lease was made in good faith, was for the jury in the lessees’ suit for damages for being denied possession, and not for the court upon the lessor’s demurrer to their case.</p> <p>2. LEASE: Loss of Possession by Bankruptcy: Right to Possession Under Future Lease. Where the lessees’ contract was that, while they were in possession under a first or existing lease, they were to reconstruct and enlarge the buildings, and they lost the first lease by voluntary bankruptcy and ceased to pay rent thereunder, and the possession passed to another tenant, they were not entitled to possession under the second lease until they first performed their contract to rebuild during the life of the first lease; and having voluntarily thrown away their right to perform during that time, their rights to possession and profits under the new lease were lost. And it makes no difference that, after they had by their voluntary acts lost the first lease, and possession thereunder, they demanded possession during the life of that lease in order that they might build. Having voluntarily failed to perform, they cannot recover damages from the lessor for refusal of possession.</p>

Bates Circuit Court. — Hon. G. A. Benton, Judge. (1) Judge Denton was disqualified from hearing this case. Held: when applying the second subdivision, that such terms include a deed of trust. State v. Tompkins, 71 Mo. 613; State v. Sharpless, 212 Mo. 176.