Volume 233 — Missouri Reports

— Eon. C. A. Mosman, Judge. (1) The trial court should have sustained the demurrer to the evidence.

<p>1. PROBATE COURT: Janitor Hire. The probate judge is entitled to have the services of the janitor who cleans and cares for Ms court room paid for by the county; and it is the duty of the county court, where it has not provided a janitor for his office, to allow him a reasonable amount for janitor hire.</p> <p>2. -: Telephone. The county court should allow the probate judge a reasonable charge for a telephone in his office. The use of a telephone in a public office has become a public necessity, and the statute (Sec. 4065, R. S. 1909) provides that the necessary expense incurred by the probate court for “necessaries” shall be paid by the county.</p>

<p>1. AGENT: Selling'Real Estate: Act of 1903. The Act of March 28, 1903, now Sec. 4634, R. S. 1909, forbidding an agent in certain cities to sell real estate unless his authority is in writing, is void and unconstitutional; and the agent is not debarred from recovering his commissions for a sale actually made, solely because his authority to sell was not in writing,' as required by that act.</p> <p>2. -: -: Peremptory Instruction. Though plaintiff’s evidence is uncontradicted, showing that as agent under an oral contract he sold the real estate and had earned his com, mission, the court is not authorized to give a peremptory instruction requiring the jury to find for him in the amount claimed.</p>

- Louis City Cirep.it Court. — Hon. O’Neill By an, Judge. (1) ' The court erred in overruling defendant’s demurrer to the plaintiff’s evidence. Failure to look and listen for the approach of a car upon stepping upon railway tracks is such negligence as will bar a recovery upon the part of plaintiff.

<p>Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.</p>

— Hon. Jos. J. ' Williams, Judge. (1) Probate courts are courts of general jurisdiction and their judgments are conclusive in collateral proceedings. Johnson v. Beazley, 65 Mo. 250; Vaslor v. Brock, 84 Mo. 574. (2) The allowance by the probate court of a note has the force and effect'of a judgment, and the question whether it was supported by a valuable consideration cannot be raised in a subsequent suit in the circuit court. Clark v. Thias, 175 Mo. 628.

Habeas Corpus. . (1) A party, having once taken tbe deposition of Ms adversary, cannot, at mere will, invoke the processes of tbe law to compel bim to. submit to further examination, but must show a substantial reason to tbe court having jurisdiction of tbe cause, and obtain its order permitting such further examination.

Quo Warranto. (1) The extension ordinance was not ratified by the requisite number of qualified voters of Kansas City, as provided by the Constitution of Missouri.

— Now. J. C. Sheppard, Judge. - (1) Without express statutory power, a hoard of equalization cannot add omitted property to the assessment roll. Railroad v. Cass Co., 53 Mo. 30; State ex rel. v. Cunningham, 153 Mo. 652. ■ (2) No- jurisdiction has been conferred on a county board of equalization over manufacturers’ returns, quoad manufacturers. R. S. 1899, sec. 8546; Id., see. 8486.

<p>Habeas Corpus.</p>

<p>CAPITAL OFFENSE: Appeal: Imprisonment in Penitentiary. A defendant who has been convicted of murder in the first degree and sentenced to life imprisonment in the penitentiary, and who has not been admitted to bail, is not entitled to -remain in the county jail during his appeal, unless there is an order of the proper court or judge finding there is provable cause for such appeal. •</p>

— Row. Geo. H. Williams, Judge. (1) The information is fatally defective in that it does not state that defendant Smith does not belong to one of the classes not included in the operation of the law. State v. Hamlett, 129. Mo. App. 70'; State v. Connor, 142 N. C. 700; State v. Carmody, 50 Ore. 1; Marshall v. State, 119 S. W. (Tex.)'310. (2) The statute contemplates nothing but medicine and surgery.

— Hon. Ralph 8. Latshaw, Jndge. (1) The evidence on the part of the State, as well as that introduced by the appellant, so abundantly establishes the fact that appellant could not have a fair and impartial trial in Jackson county, that it amounted to gross abuse of judicial discretion to deny the application for a change of venue.

Charles D. Stewart, Judge. (1) The evidence of Marvin Tall was incompetent and should have been excluded. (2) The cross-examination of Brickey, Frank Riney, and Dick Riney was improper, prejudicial and .is reversible error. State v. Rose, 178 Mo. 25; State v. Wigger, 196 Mo. 90; State v. Prendible, 165 Mo. 239'. This cross-examination would have been reversible error if the objections to the questions had been sustained.

Lonis Court of Criminal Correction. —Hon. Wilson A. Taylor, Judge.

Louis City Circuit Court. — Hon. Geo. C. IlitchcocJo, Judge. (1) The Act of March 18, 1907, is inoperative and void for uncertainty. No standard or test is afforded by which to determine when the denounced transaction, innocent in itself, becomes criminal. Bisk., Stat. Cr. (3 Ed.), sec. 41; 26 Am. & Eng. Ency. Law, 656; Black on Interpretation of Laws, 336 ; State v. Partiów, 91 N. C. 560; Cook v. State, 26 Ind. App. 278; Augustine v. State, 41 Tex. Crim.

— Son. John T. Moore, Judge. (1) There can he no escape when the party charged was not in the lawful custody of the officer. The only authority for the officer to hold the appellant was the warrant of commitment and it did not place him in the custody of the constable. Custody implies physical force sufficient to restrain a prisoner from going at large. No moral obligation can be substituted for it. The moment compulsion and force are withdrawn there is no custody.

Certiorari. Tbe Springfield Court of Appeals bad no jurisdiction of tbe case of State ex rel. O’Malley v. Musick et al. State ex rel. v. Nixon, 232 Mo. 496. The writ of certiorari should be dismissed because relator did not raise the question of territorial jurisdiction in the Springfield Court of Appeals, and did not move to retransfer the Musiek case to St. Louis Court of Appeals.

Louis City Circuit Court. — Sow. Geo. H. Shields, Judge. (1) Eleven men do not constitute a lawful grand jury, and one composed of only that number present cannot investigate criminal matters. Mo. Constitution, art. 2, sec. 28; State v. Vaugbn, 132 Mo. App. 141; Ex parte Ogle, 61 S. W. (Tex.) 122; Ogle v. State, 63- S. W. (Tex.). 1009; Doyle v. State, 17 Ohio 222; State v. Wilson, 85 Mo. 138; R. S. 1909, sec. 7271.

Quo Warranto. (1) Quo ivarra/nto is a proper proceeding to determine the question of the legality of the organization of a municipal corporation. 32 Cyc, 1424; High’s Extraordinary Legal Rem., sec. 695. In such proceedings the court is not limited to an examination of the ■ record but may inquire into the facts upon which the jurisdiction of the court is founded. State ex rel. v. Coffey, 59 Mo. 59; State ex rel. v, McReynolds, 61 Mo. 203; State ex inf. v. Bellflower, 129 Mo.

Mandamus. (1) It is claimed by the respondent that the Act of 1897, p. 49 (R. S. 1899, sec. 6275) is in part unconstitutional as being in contravention of section 28 of article 4 of the Constitution of Missouri. It is contended that the words “maintain and operate,” found in .the body of that act, should have been in the title of the act in order to authorize the city to issue bonds to construct, maintain and operate an electric light-plant.

— Hon. Lucian J. Eastin, Judge. (1) The court erred in appointing a receiver of the Merchants’ Improvement and Investment Company. (a). The petition did-not state facts sufficient to constitute a cause of action or entitle the plaintiff to any relief.

— Eon. A. W. Walker, Special Judge. . (1) The evidence that William Grider was shot at prior to June 17, 1909,' was clearly inadmissible and prejudicial, since it.was not shown by credible testimony that appellant was in any way responsible for the firing of the shot. All that the testimony discloses is that a shot was fired in the vicinity of Grider’s home.. There is not a syllable of testimony that tends to fasten responsibility for such act upon appellant.

— Hon. John G. Park, Judge. (1) The new trial was not granted because of the weight of the evidence, but on account of the insufficiency… Held: even in cases where a valuable consideration had been received for the promise, that such a promise would not be specifically enforced upon the death of the promisor unless the proof of the contract was so cogent, clear and forceful as to leave no reasonable doubt in the mind of the chancellor as to its terms and character; that an…

Appeal, from Jackson Circuit Court. — lion. John G. Park, Judge. This suit, as shown by the petition, is founded upon a letter of credit or commendation, made by the Union National Bank. The Union National Bank is liable on account of this letter of credit or letter of commendation. R. S. 1909, sec. 2785; Weil v. Schwartz, 21 Mo. App. 372; Felix v. Shirey, 601 Mo.

— Hon. L. B. Wood-side, Judge. (1) In a proceeding of tMs kind, where exceptions are filed to the final settlement of an executor, the proceedings on appeal are analogous to appeals in equity cases. The court will examine the whole record and review the findings of fact as well as the law. The questions presented will be reviewed by the court as chancellors. In re Estate of Meeker, 45 Mo. App. 195; In re Estate of Danfurth, 66 Mo. App. 586.

— Hon. John- G. Park, Judge. (1) The defendant was guilty of negligence in maintaining its platform dangerously close to the track in question, so as to endanger the safety of employees necessarily and properly working alongside the same, unless it was necessary for defendant to maintain its platform in such proximity. Murphy v. Railroad, 115 Mo.

<p>Appeal from Shannon Circuit Court. — Eon. IT. N. Evans, Judge.</p>

<p>1. ABSTRACT: No Showing of Motion in Record Proper. Unless the abstract of the record proper shows that a motion for a new trial was filed in the circuit court, the appellate court cannot consider the exceptions, though the bill of exceptions shows both such motion and that it was filed.</p> <p>2. -: Affidavit for Appeals: Record Matter. The abstract of the record proper should show at what term an affidavit for an appeal was filed in the circuit court, and at what term the appeal was granted.</p> <p>3. -: Filing of Bill of Exceptions. The abstract of the record proper should show that the bill of exceptions was signed by the court, and a record entry showing the filing of the same.</p> <p>4. -: Commingling Record and Exceptions. Matters of record proper cannot properly appear in the abstract of the bill of exceptions, nor can matters of exception properly appear in the abstract of the record proper. The abstract should distinguish matters of record proper and matters of exception.</p>

Louis City Circuit Court. — Hon. Chas. Claflin Allen, Judge. (1) The court erred in setting aside the verdict of the jury and granting a new trial on the application of Terry, and erred in .overruling plaintiff’s motion to strike out said Terry’s petition for a new trial for the following reasons: First, because if said application is to be regarded as a motion for a new trial the same was filed too late.

— Hon. Hermann Brumback, Judge. (1) (a) The evidence was insufficient to show that plaintiff had such a title as he had agreed to furnish, and insufficient to skoifr that he had any title by the Statute of Limitations. Weller v. Wagner, 181 Mo. 161; Crowl v. Crowl, 195 Mo. 347; Heckescher v. Cooper, 203 Mo. 293; McCune v. Goodwillie, 204 Mo.. 306; Baker v. Thompson, 214 Mo. 514; Stone v. Perkins, 217 Mo. 586. (b) .