Volume 232 — Missouri Reports

— Hon. Alfred Page, Judge. (1) The court erred in not instructing the jury on the whole law applicable to the case made by the evidence. State v. Heinze, 66 Mo. App. 135; State v. McGuire, 113 Mo. 670; State v. Nelson, 118 Mo-. 124; State v. Branstetter, 65 Mo. 149; State v. Banks, 73 Mo. 592; State v. Patrick, 107' Mo. 147; State v. Stonum, 62 Mo. 596; State v. Palmer, 88 Mo. 568; State v. Jones, 61 Mo. 232; State v. Taylor, 118 Mo. 153; State v. Rufus, 149 Mo. 406.

-John T. Moore, Judge. (1) The verdict is certain, definite and responsive to the issues joined. The verdict is a good general, verdict and sufficient. State v. DeWitt, 186 Mo. 70. (2) The motion for new trial was filed after judgment of sentence, and not within the time provided by the statutes of this State and the decisions of this •court. Therefore, there is nothing for this court to •consider in this case but the record proper.

Louis City Circuit Court. — Row. George R. Shields, Judge. (1) The threat, if threat it may be called, was-made a year and a- half before the tragedy, at a time when the three parties, appellant, deceased and the witness, were upon the most amicable terms', which terms apparently continued up to the fatal day; there was no expression of animosity • or hostility towards deceased any more than to the witness GHoor; the remark itself was not taken “seriously” by the witness.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge. (1) Section 1856, R! S. 1899, is both criminal and highly penal, and in derogation of the common law; is to be strictly construed, construed stricti, if not strictissimi juris; is not to be extended by implication, to include other persons, places or things than those within both its letter and spirit. State v. Gritzner, 134 Mo. 527; State v. Bryant, 90 Mo. 537; State v. Sehuchmann, 133 Mo.

<p>1. CONSTITUTIONALITY OF STATUTE: Raised by Ministerial Officer. Ordinarily a ministerial officer, such as a county treasurer, whose duties are purely ministerial, has no right to refuse to perform that duty on the ground that the statute creating a right or the duty, is unconstitutional; nor has he the right, of his own motion, when sued on a warrant which he has declined to pay, to defend on the ground that the stature, authorizing the issuance of the warrant, is unconstitutional. But when he has been advised by the Attorney-General that such statute is void, and directed by the county court not to pay said warrant, he does have the right on being sued on the warrant, to interpose the defense that the statute is unconstitutional and void.</p> <p>2. CONSTITUTIONAL LAW: Special Law: Applicable to Only One County. An act providing that “in all counties whose population, as ascertained by the United States census of 1900, is 32,000 inhabitants or over and less than 50,000 inhabitants, all prosecuting attorneys shall receive a salary of $2500 per annum, and no other remuneration whatever,” is a special and local law, and unconstitutional. It can apply only to the counties which on the day of its enactment had the requisite population.</p> <p>3. -: -: -: General Law Applicable. Said act is also unconstitutional because a general law on the subject could have been enacted, whereas it applies only to the counties which at the time of its enactment had the requisite population.</p> <p>4. -: Two Subjects: Creating Office and Fixing Salaries. An act amending a statute and so changing it that a county officer’s compensation is changed from fees and a salary, to a larger salary only, is not unconstitutional as embracing two subjects, because it gives bim a salary but no fees, and creates an assistant and fixes bis compensation at a definite salary. Tbe matters are germane anfl congruous.</p> <p>5. -: Uniform in Operation: Salaries of County Officers. A statute fixing tbe compensation of prosecuting attorneys at a definite salary, in lieu of fees and a smaller salary, in all counties having a named population, is not violative of that part of tbe Constitution providing that “tbe General Assembly shall, by a law uniform in its operation, provide for and regulate tbe fees of all county officers, and for this purpose may classify tbe counties by population.” Even though tbe law is special and local, it is uniform in its operation upon all matters and things embraced within its provisions.</p>

<p>1. JURY: Inapplicable Statute. If a statute under which juries for the courts of Buchanan county are selected is no longer available, because of a decrease in requisite population, there yet remains the constitutional provision that “the right to trial by jury, as heretofore enjoyed, shall remain inviolate,” under which common law right jurors may he summoned as talesmen as occasion may require, or article 3 of chapter 64, Revised Statutes 1909, applies to that county, and if one or both do not meet the full ends of justice the General Assembly can supply the deficiencies. The county is not left without any jury law whatever simply because the Act of 1905 as amended in 1907, creating a hoard of jury commissioners for that county, is no longer applicable to that county.</p> <p>2. STATUTE: Classification by Population: Decrease. Where counties are classified according to population, courts or legislatures do not assume that the number of their inhabitants will never decrease. Simply because a certain county had the requisite population at the time a statute was enacted, and therefore came within a statutory class, it will not he held that it continued, to remain in that class after its population decreased .below the statutory standard. Even if this were the rule for cities in that regard (namely, that a city once admitted to a class because of requisite population will not be taken from that class because of a decrease of its population below the minimum standard), it would not be applicable to counties, since they pass automatically from one class to another, while cities do not, but only by virtue of a vote of the people.</p> <p>3. SPECIAL LAW: Courts: Juries. Cases holding valid, against the objection that they were local or special, acts creating some new court, or a new division of an existing court, or regulating changes of venue from one division of the court to another, or providing that terms of a circuit court should be held at some town other than the county seat, were properly decided, because the Constitution áuthorizes legislation of the character of those acts; but it has no such provision concerning juries; on the contrary it says that “the General Assembly shall not pass any local or special law summoning or impaneling grand or petit juries.”</p> <p>4. -: Counties: Classification by Population: Decrease Below Standard. Where population is the sole basis of classification, it would be class legislation to permit a county which had the requisite population at the time the statute was enacted to remain in that class after its population had decreased below the minimum population, while keeping out other counties which have equal population but less than the minimum fixed by the statute. Where the statute divides counties into classes by population, and fixes the method of selecting juries in each class, a county whose population decreases below the minimum fixed by the statute, passes automatically to the next lower class.</p> <p>5. -: -: -: Jury Commissioners of Buchanan County: Ouster. The statute enacted in 1905-7 provided that “in each county of this State now containing or which may contain hereafter a city having, according to the last preceding national' census, more than 100,000 inhabitants and less than 400,000,” petit jurors should be selected by a board of jury commissioners composed of the judges of the circuit court and the criminal court,, and gave to those judges $1500 per annum for their services as such jury commissioners. The last national census taken prior to the enactment of the statute gave St. Joseph a population in excess of 100,000, but the same census for 1910 reduced that population to about 77,000. Reid, that Buchanan county automatically passed out of the class upon the ascertainment by the last national census that the population of St. Joseph was less than 100,000 and that the jury commissioners as such must be ousted.</p>

<p>1. JURISDICTION: Courts of Appeals: Act of June 12, 1909. The Act of June 12, 1909, empowering the judges of courts of appeals to transfer causes from one court of appeals to another court of appeals, is unconstitutional.</p> <p>2. -: -: Power to Hear and Determine. The Constitution, in giving a court of appeals power “to hear and determine” cases transferred to it by the Supreme Court, and authorizing one court of appeals, when another court of appeals is created by legislative act fixing its territorial district, to transfer to such new court of appeals cases which by the act do not come within its territorial limits and authorizing said new court “to hear and determined causes so transferred, did not create any new jurisdiction in the court of appeals to hear and determine causes, but used the words “to hear and determine” in reference to cases over which the court of appeals had already been given jurisdiction by the Constitution. Authority to transfer a case is not authority to confer jurisdiction.</p> <p>3. -: -:-: Delegation of Legislative Authority. The conferring of jurisdiction over a suit is a legislative act. Therefore, even if the General Assembly had constitutional power to confer appellate jurisdiction on a court of appeals over a case appealed to it from a county outside of the territorial limits of such court, the General Assembly would have no authority to delegate that power to a judicial tribunal by authorizing the judges of the courts of appeals to transfer a case from one of them to another.</p>

— lion. A. E. Waller, Judge. (1) Section 6276, R. S. 1899, provides that not less than fifteen days’ previous notice shall be given by publication in some newspaper published in such city or town. There was only one publication of notice of the election in this case, -which was published in a weekly paper. One publication of such notice was not sufficient. Stine v. Wilkson, 10 Mo. 66. This decision has never been overruled or criticised.

Mandamus. (1) There is no complaint by the relator about taxing the costs of such continuance against the plaintiff in said cause, the Spring River Electric Power Company. The relator, however, objects to the paying of witness fees of P. J. Lenliard, 1 day and 434 miles travel from Sapulpa, Oklahoma, to Lamar and return, $22.9’5. There is no statute authorizing the taxing of such non-resident witness fee.

Mandamus'. (1) The sheriff’s returns show a good service,, having been made on the defendants’ representative in charge of their offices. It is not necessary that service on a corporation be had on its general agent. Davis v. Southeastern Line, 126 Mo. 69; Newcomb v. Railroad, 182 Mo. 705. (2) The person who is in charge of defendant’s office at the time of service is the proper person to be served. Davis v. Southeastern Line, supra.

Louis. Court of Crimiual Correction.— Hon. Wilson A. Taylor, Judge. (1) The act of cheating and defrauding has been denounced as a crime from the earliest period. ’ Statutes enlarging the boundaries of the common law and extending their provisions to new classes of cheats and frauds perpetrated by particular described means have been frequently enacted and uniformly upheld.

— Eon. F. G. Johnston, Judge. (1) An indictment or information against a defendant must contain an allegation of every substantive fact which, the State is required to prove in order to secure a conviction. State v. Murphy, 141 Mo. 270; State v. Green, 111 Mo. 585; State v. Reed, 117 Mo. 604; State v. Evans, 128 Mo. 406; State v. Blan, 69 Mo. 317.

— Hon. Henry L. Bright, Judge. (1) Defendant was not rearraigned after the withdrawal of his plea of not guilty. (2) There is no evidence to support the verdict, and the peremptory instruction, requested by defendant and refused by the court, should have been given. The poker table in question in this case is not a gambling device within the meaning of Sec. 4750, R. S. 1909. State v. Etch-man, 184 Mo. 193; State v. Mathis, 206 Mo. 604; State v. Hall, 228 Mo. 456.

— Eon. Alonzo D. Burnes, Judge. (1) The indictment is valid, sufficient and in accordance with the language of the statute, and meets the approval of the opinions of this court in form and substance. State v. Pheland, 65 Mo. 547; State v. Doyle, 107 Mo. 36; State v. Williams, 191 Mo. 205; State v. Harris, 209 Mo. 423.

Louis City Circuit Court. — Eon. Geo. E. Shields, Judge. (1) It is error for an instruction to single out the defendant, or his wife, or any other witness, and practically warn the jury against the testimony of such witness. Stetzler v. Railroad, 210 Mo. 712; Zander v. Railroad, 206 Mo. 461; Huff v. Railroad, 213 Mo. 515; Montgomery v. Railroad, 181 Mo. 477; Connor v. Railroad, 181 Mo. 415; Shepard v. Railroad, 189 Mo. 362.

Louis City Circuit Court. — Eon. George É. Shields, Judge. (1) Instruction 1, given by the court, is erroneous and prejudicial, in telling the jury that a steel screw-driver set in a wood handle is a dangerous and deadly weapon. This was a question for the jury, and the court committed error in assuming its dangerous and deadly character.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The authorities are conflicting as to whether an honest but erroneous belief in the existence of a valid decree of divorce will constitute a defense to a. prosecution for, bigamy. The greater weight of authority is to the effect that it will not. Davis v. Com., 13 Bush (Ky.) 318; State v. Armington, 25 Minn. 29; Squire v. State, 46 Ind. 459; R. S. 1909, sec. 4721.

— Row. Jos. J. Williams, Judge. (1) The court erred in giving instruction one, for the reason that there was no testimony to base said instruction on; that is to say, the State must allege and prove that the prosecutrix was single and unmarried at the time the offense was committed, which in this case the State failed to prove, and there is no'evidence whatever, either direct or circumstantial, that the prosecutrix was unmarried, and when there is no evidence that she was…

<p>SETTING ASIDE ORDER OF APPEAL: Granting New Trial and Subsequent Conviction. The action of tlie trial court, after having overruled defendant’s motions for new trial and in arre'st and after' having made an order granting him an appeal and approving his bond, in setting aside said orders and again taking up the motions and sustaining them and granting him a new trial, upon its own initiative and in the absence of ‘defendant, was without authority of law and illegal; and upon a proper plea in bar being filed, a subsequent conviction and judgment thereafter should he set aside, and the former judgment considered as in force. [See State v. Sutton, page 244, this volume.]</p>

— Row. C. A. Denton, Judge. (1) The court erred in refusing to grant the defendant a new trial, for the reason that the law was not properly declared in this case as to what it takes to constitute good repute. The question of paramount importance in a case of this kind is, was the prosecutrix of good repute at the time of the commission of the alleged offense?

— How. Jos. J. Williams) Judge. (1) The State has failed to prove a willful, felonious, deliberate, premeditated, malicious attempt to kill either Wilfred Roussan, Boss Courtois or any other person, because the testimony of Roussan was that he and the defendant were friends, were on friendly terms at the time, and had never had any trouble.

— Root. F. II. Trimble, Judge. (1) The vacation order of the judge of the circuit court, convening a grand jury for- the October term, 1909, that being the term at which the defendant was indicted, was not made and filed as the law directs; the order for the grand jury was not filed by said judge, hut by the prosecuting attorney. This was neither a literal nor a substantial compliance with the mandate of the statutes. R. S. 1909, sec. 7266.

— Eon. N. D. Thurmond, Judge. (1) No offense against the laws of Missouri is charged by tbe information, and the proof showed that the appellant was guilty of no crime under the laws of this State. R. S. 1909, secs. 4492 and 4495; R. S. 1899, secs. 1857 and 1861; Laws 1909, p. 450; State v. Koonse, 123'Mo.

— Eon. Nick M. Bradley, Judge. (1) In order to constitute the offense charged, there must be an assault, and it is equally clear that the accomplishment of the act must be intended by the assault, and such intent must be shown by such assault and the attending circumstances. State v. Riseling, 186 Mo. 530; State v. Priestly, 74 Mo. 24; State v. White, 52 Mo. App. 285; State v. Harney, 101 Mo. 470; State y. Hayden, 141 Mo. 311; State v..D'alton, 106 Mo. 463.

— Hew. E. E. Porterfield) Judge. (1) The court erred in giving instruction 6 on behalf of the State. This instruction did not give the defendant the benefit of his explanation or his reasons for leaving the State, his statement being that he left because he was in fear of a mob, that he intended to return as soon as quiet had been established, and that he did return.

' Appeal from St. Louis City Circuit Court. — Eon. Robert M. Foster, Judge. (1) The doctrine of ‘‘substantial performance” as applied to building and construction contracts applies only where there has been an honest attempt to comply with the contract, where the deviations from its terms, are slight and do not run through the entire work.

— Hon. Louis Hoffman, Judge. The separate opinion of Gantt, C. J., in Owen v. Baer, 134 Mo. 438, was not the majority opinion of the court, so far as it held that a local option provision for classified cities created a class of cities not authorized by the Constitution. Ex parte Handler, 176 Mo. 390. This court has repeatedly held that a separate class of cities is not created by local option laws.

Genevieve Circuit Court. — No». Chas. A. Killian, Judge. (1) This ease has many points in common with the case of Shelton v. Franklin, decided by this Court in Banc and reported in 224 Mo. 342, but it has its distinguishing features which make the law announced in the above mentioned case only apply in this case to the extent to which the two cases are alike.

<p>ELECTION CONTEST: In Supreme 'Court: Commissioner. In a contest for a State office, brought in the Supreme Court, two commissioners, one of each political party, should be appointed to take the evidence. [Per LAMM, J., in dissenting opinion.]</p>

<p>1. CONTESTED ELECTION: Railroad and Warehouse Commissioner. The Supreme Court has no jurisdiction to entertain an election contest for the office of Railroad and Warehouse Commissioner.</p> <p>2. -: -: Not Mentioned In Statute. The Constitution provides that the “trial and determination of contested elections of all public officers, whether State, judicial, municipal or local, except Governor and Lieutenant-Governor, shall be by the courts of law, or by one or more of the judges thereof. The General Assembly shall, by general law, designate the court or judge by whom the several classes of election contests shall be tried, and regulate the manner of trial and all matters incident thereto.” And the statute (enacted in 1877) provides that “all contested elections for judge of the Supreme Court, judge of the St. Louis and Kansas City Courts of Appeals, Superintendent of Public Schools, Secretary of State, State Auditor, State Treasurer and Attorney-General shall be heard and determined by the Supreme Court.” Neither that statute nor any other names Railroad and Warehouse Commissioner. Eeld, that the Supreme Court has no jurisdiction to hear and determine an election contest for the office of Railroad and Warehouse Commissioner.</p> <p>Eeld, by GRAVES, J., dissenting, that the constitutional provision divides the officers into three classes, one of which is “State” officers, and that the statute enacted in 1877 (Sec. 5951, R. S. 1909), mentioned all “State” officers then in existence, and the rule of law is that where a constitutional provision creates a class, and a statute enacted in pursuance thereof mentions all the members of the class then in existence, it opens, upon a subsequent creation of an office belonging to the same class, to admit that office; and guided by that rule of law, the Supreme Court has jurisdiction over an election contest for Railroad and Warehouse Commissioner, since the office was created after the enactment of 'section 5951, and is a State office.</p>

Prohibition. (1) A demurrer to the petition and rule in prohibition admits every allegation of the petition well pleaded. State ex rel. v. Shepherd, 192 Mo. 497. (2) Prohibition lies whenever the lower court is without jurisdiction or is acting in excess of jurisdiction or abuse of its powers, and no other remedy is available.

Louis City Circuit Court. — Hon. Chas. Claflin Allen, Judge. (1) The circuit court had no authority to strike the second amended petition from the files. But one petition had been adjudged insufficient upon demurrer. R. S. 1899, secs. 596, 601, 621-623; Comstock v. Davis, 51 Mo. 569; Spurlock v. Railroad, 98 Mo. 13; Barton v. Martin, 54 Mo. App. 134; Antonelli v. Basile, 93 Mo. App. 141.

<p>INSTRUCTION: No Objection Necessary. It is not necessary to both object to and except to the giving or refusing of an instruction, in order to have it reviewed on' appeal. All that is required is that an exception be saved. .The giving or refusing of an instruction is the action or ruling of the court, and litigants are not required to object to the court’s rulings, but only to except to them. [Overruling Sheets v. Iowa State Ins. Co., 226 Mo. 613.]</p> <p>Bold, by WOODSON, J., dissenting, that, unless both an objection and exception are saved to the giving or refusing of an instruction, it is not for review on appeal.</p>

— No». John G. Park, Judge. (1) The plaintiff was not required to look for an excavation in the sidewalk. It was the duty of the defendants to keep such an excavation properly guarded ,and lighted. Plaintiff had the right to presume that the .sidewalk was in a reasonably safe condition for use. Perrette v. Kansas City, 162 Mo. 238; Holloway v. Kansas City, 184 Mo. 29; Roe v. Kansas City, 100 Mo. 190; Drake v. Kansas City, 190 Mo. 385.

Prohibition. (1) It has been decided in State ex rel. Dunham v. Nixon, that the Springfield Court of Appeals has no jurisdiction to try cases appealed from the circuit court of the city of St. Louis, and relator, on the authority of that case, refrains -from further discussion' on that point.

— Hon. Francis H. Trimble, Judge. (1) The defendant is charged with murder in the first degree. The jury convicted him of murder in the second degree. The theory of the State, and the evidence in support thereof, was that the defendant, if guilty at all, was guilty of murder by lying in wait for his victim. And we also insist that if the defendant was guilty of killing Albert Albright he was guilty of murder in the first degree.

Louis City Circuit Court. — Hem. J. Hugo Grimm, Judge. (1) Section 1855', R. S. 1899, does not apply, and was never intended by the Legislature to apply, to cases of disputes between two parents for the possession of their children. Barnes v. Commonwealth, 129 Pa. St. 144; Commonwealth v. Meyers, 146 Pa. St. 29. (2) The mother of the child having a right to take it without being guilty of a crime, no person who acted for her and under her direction could be guilty.

— Eon. Argus Cox, Judge. (1) (a) Judgment was rendered on the coming in of the verdict and before the motion for new trial was filed, (b) The motion for new trial not-having been filed before judgment, no matters of exception were before the Court of Appeals. R. S. 1899, sec. 2689; State v. Pritchett, 219 Mo. 705; State v. Rosenblatt, 185 Mo. 117. (c) The judgment, was in proper form;.

— Hon. W. N. Evans, Special Judge. (1) The information is fatally defective in failing to allege that the defendant was engaged in running an “order house” or was acting as an agent for such house or in that capacity. State v. Price, 229 Mo. 670. (2) The information is fatally defective in failing to allege that the person for whom defendant delivered the liquor was not authorized by law to deal in intoxicating liquors. State v. Price, 229 Mo. 670; Laws 1907, pp. 231-232.

— Hon. David H, Eby, Judge. (1) The recognizance offered in evidence was conditioned that' defendant Lee appear and answer an… Held: “We are satisfied that the same rules as to bonds which may be enforced as common law obligations between individuals do not apply to bonds executed, to the State for the appearance of persons charged with criminal offenses, for in criminal cases they are purely statutory, while as between individuals they are not.” State ex rel. v.…

<p>1. PENAL STATUTE: Derelict Corporation: Failure to Make Report: Parole. A suit on a penal statute is not a criminal, but a- civil, action. Such a statute is not, therefore, a part of “the criminal laws of this State.” The action authorized by Sec. 1017, R. S. 1899, to be brought in the name of the State at the relation of the county, against a corporation, to recover a fine of not less than $50, for failure to make report to the Secretary of State before July 1st of each year, stating the name of its officers, amount of stock, amount of taxes paid, etc., is a penal action or an action to recover a penalty, and the statute (Sec. 3030, R. S. 1909), authorizing such a “fine” is not a part of “the criminal laws of this State,” within the meaning of those words used in the parole law.</p> <p>2. -: -:--: Fine: As Meaning Penalty. The word “fine” often has a broader meaning than mere punishment for a crime. It is sometimes used to express the idea of a penalty imposed for the violation of a law, when such violation is made neither a misdemeanor nor a felony; and in this sense it is used in the statute which requires corporations to report annually to the Secretary of State, and authorizes the county to “recover” a fine from them.</p> <p>3. -: -: -: Form of Action. The pleadings may indicate, as they do in this case, that the State has chosen to resort to a civil action as tbe remedy to recover the fine prescribed by the statute rather than to the criminal laws to impose a punishment, even if the statute makes the derelict act a criminal offense.</p> <p>4. PERSON: As Used in Parole Law. The word “person,” as-used in the parole law, has no application to corporations,. So that where a fine is imposed upon a corporation for failure to make report to the Secretary of State of its officers, capital stock, taxes paid, etc., the fine cannot be suspended under the parole law. Parole laws have reference to natural persons —to citizens who may he incarcerated in jail or penitentiary.</p>

— Hon. Thomas H. Reynolds, Special Judge. (1) Tire demurrer admitted every fact favorable to tbe plaintiff which tbe jury could infer from tbe evidence. Marshall v. Scbricker, 63 Mo. 308; Mauerman v. Siemerts, 71 Mo. 101; Franke v. St. Louis, 110 Mo. 516; Patton v. Bragg, 113 Mo. 595; Berry v. Railroad, 124 Mo. 24.4; Bender v. Railroad, 137 Mo. 240; Deitring v. Railroad, 109 Mo. App. 541; Moore v. Railroad, 194 Mo. 9.

Louis City Circuit Court. — Eon. Jas. E. Withrow, Judge. Appellant was lawfully upon the-premises in question. It was a public place, into which he had been invited by the proprietor for his benefit and for the purposes carried on therein. The respondent’s servant opened-the trapdoor and left it open.

<p>NEGLIGENCE: Right of Wife to Sue for Death of Husband. The court declines to reconsider the decision in Strottman v. Railway Co., 228 Mo. 154.</p>

<p>1. APPELLATE JURISDICTION: Acquiescence. The court will not permit parties to confer jurisdiction upon it either by stipulation or by acquiescence.</p> <p>2. -: Assignment and Payment of Note: Deed of Trust. Where it is admitted that plaintiff is the owner of the land, and that the note for $200 was originally secured by a valid deed of trust thereon, and the only issues in the case are whether or not the note was assigned to defendant and whether or not it was paid prior to assignment, title to real estate is not involved, and the Supreme Court has no jurisdiction over ’ the appeal from a judgment declaring defendant “is the owner of said note and entitled to the lien on said premises as created by said deed of trust, to the extent and amount of the sum now due and unpaid on said note.”</p>

, — Hon. Samuel Dams, Judge. (1) No objection was made to the pleadings at a reasonable hour, defendant filed answer to the petition of plaintiff, the witnesses were present and all the expense made and labor incident to a trial performed before any objection was made to the pleadings. This practice has been repeatedly condemned by this court as. well as by the courts of appeals. Goldsmith v. Candy Co., 85 Mo.

— Ho». L. B. Wooclside, Judge. (1) The true owner’s title to land is not affected by tax proceedings unless they are brought against him and it is necessary that the proceedings, to subject real estate to the payment of delinquent taxes, shall comply with the requirements of the statute, and in this case they do not.

<p>JUDGMENT: Review Within Three Years: Under Thirty-year Limitation Statute. Under Secs. 777 and 779, R. S. 1889, a judgment rendered by default, upon summons by publication ' only, under Sec. 4268, R. S. 1899, may, upon the petition of the defendant, be reviewed within three years. Section 4268, being the thirty-year Statute of' Limitation, is not such a statute of repose that the provisions of Sections 777 and 779, providing for the review of judgments, do not apply to suits in which the title to the land is adjudged to belong to plaintiff.</p>

— Eon. J. L. Fort, Judge. (1) Defendants’ holding under the contract, after the expiration of five years, was a mere tenancy at will and was terminated by the notice to quit. Corby v. McSpadden, 63 Mo. App. 648; McClain v. Abshire, 72 Mo. App. 390; Hobart v. Murray, 54 Mo. App. 255. (2) A lease, which does not have a time certain for its termination is void, and a person holding under it is a mere tenant at will.

— How. F. G. Johnston, Judge. (1) The petition must contain the names of the parties plaintiff and defendant. R. S. 1899, sec. 592.. The petition does not definitely state any one as defendant. The title being a part of the petition must be considered with the entire petition, and where a pleading is in the alternative, each of the alternatives must state a legal cause of action, or defence, and if either of the statements is insufficient in law the entire plea is defective.

Louis City Circuit Court. — Eon. Jos. E. Withrow, Judge. (1) An exemption from taxation “so long as property is used exclusively for educational purposes” does not apply where property is leased and rented to the public for hire. Fitterer v. Crawford, 157 Mo. 64; Adelphia Lodge v. Crawford, 157 Mo. 358; State ex rel. v. Macgurn, 187 Mo. 242; State ex rel. v. Johnston, 214 Mo. 668.

<p>1. EXCESSIVE VERDICT: $11,800: Impaired Arm. Plaintiff, a railway mail clerk, earning $900 per annum, was twenty-five years of age, and by a collision between defendant’s trains, was thrown against the mail-sack rack of the car, and his right arm caught in the sliding door, resulting in the fracture of the bones near the elbow. He was rendered unconscious for several hours, but bruises on the head and ear healed. He was treated by defendant’s physician, and for eight months by an osteopath, but his salary went on, and he made no proof for money expended for medicines or medical attendance. In about eight months he resumed work for the Government, at the same wages, but at the depot in checking mail sacks, at which he did more or less writing, and worked eight hours a day. In two fingers of the right hand he has lost sensation, and the movement in the elbow is limited by reason of a bony growth. There is a deep indentation of the large muscle of the chest that runs over and supplies the right arm, and that muscle has been severed to a great extent, though not altogether, and the motions and uses of that arm are badly interfered with. He can raise only a few pounds with it, and the injury is permanent, and besides he is nervous when he sees something about to happen. Held, that a verdict for $11,800 is excessive by $5,800.</p> <p>2. -: -: -: Remittitur. Although the verdict is grossly excessive, yet if there was no error in the admission • or rejection of testimony or in the instructions of the court, and no misconduct on the part of the jury is shown, the appellate court will require a remittitur as a condition of affirmance, and will not because of the excess order a new trial.</p>

Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge. (1) Injunction lies to restrain proceedings of a municipal corporation which encroach upon private rights at the suit of one injuriously affected by a void ordinance or to prevent the doing of any legal wrong whatever, whenever, in the opinion of the court, an adequate remedy cannot he afforded by an action for damages.