Volume 236 — Missouri Reports

Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge. Ordinance 24297, section 2, under which, this prosecution was had, undertakes to prohibit methods of adulterations other than those to be found in the Revised Code of St. Louis. This action is brought for violation of subdivision 3 of See. 2 thereof, for adding to skimmed milk a foreign substance called “annatto,”' for the purpose of coloring said milk. Annatto is a coloring matter and a foreign substance.

Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge. (1) Said ordinance is void as being in conflict with provisions of the Act of Congress, approved June 30, 1906, known as the “Pure Food and Drug Act,” and the standards and regulations of the Department of Agriculture of the United States used and applied in regulating commerce between the states.

Prohibition. (1) A court of equity has no power to try the title to a public office or position. State ex rel. v. Aloe, 152 Mo. 466; State ex rel. v.- Withrow, 154 Mo. 397; Arnold v. Henry, 155 Mo. 48; State ex rel. y. Seehorn, 143 Mo. App. 182; Mullin v. Tacoma, 16 Wash. 82; Corscaddon v. Haswell, 177 1ST. Y. 499. This rule applies to employees as well as to officers. Miller v. Warner, 59 N. Y. Supp. 956; Thomas v. Board, 56 111. 351; Healey v. Ditton, 39 La.

— Hon. John T. Moore, Judge. (1) There was misjoinder of parties and of causes of action. (2) The admission in evidence of an abstract purporting to be certified from Taney County Abstract Company by Arthur P. Farrar, was error. Stewart v. Land Co., 200 Mo. 290.

Louis City Circuit Court. — Hon. Robert M. Foster, Judge. (1) The judgment by default is conclusive that tbe contracts set forth in the first and third counts of plaintiff’s petition were made and broken as therein set forth. Froust v. Bruton, 15 Mo. 620; Munford v. Wilson, 19 Mo. 672; Price v. Page, 24 Mo. 67; Lombard v. Clark, 33 Mo. 308; Phillips v. Bachelder, 47 Mo. App. 54; Robinson v. Lawson, 26 Mo. 69; Foster v. Smith, 10 Wend. 377; Lannean v. Ervin, 12 Eich.

' Appeal from Barton Circuit Court. — Eon. J. B. Johnson, Judge. (1) The alleged acts of negligence as, set out in petition are wholly insufficient to constitute a cause of action against this defendant under section 5425, R. S. 1909. They are clearly outside of said statute, and are not comprehended therein. The foregoing section is in derogation of the common law, and should he strictly construed.

— Hon. J. C. Sheppard, Judge. (1) The petition for articles of association of The Little River Drainage District fails to state the mode and manner of draining the district, and fails to contain a plain description of the commencement, the line and termination of the drains proposed, and the proceedings are void for that reason.

— Hon. Davicl FT Blair, Judge. (1) A court will grant injunction to protect contract right, and it is not necessary that the injury-should he irreparable and defendant insolvent. Brewing Co. v. Water Works, 34 Mo. App. 119; Gordon, v. Mayfield, 84 Mo. App. 367; Tool Co. v. Springs Co.,. 93 Mo. Ápp. 530; Musser v. Brink, 80 Mo. 350; jonesv. Williams, 139 Mo. 1; Electric Works v. Magnet Co.,. 9 Am. & Eng. Ann. Cases, 975.

<p>1. DRAINAGE DISTRICT: Jurisdiction: Motion to Vacate Judgment. After a final judgment of the county court organizing a drainage district — establishing the district, passing upon all objections and remonstrances of the opposers to the scheme, and providing for the letting of the contracts for the performance of the work and the issuance of bonds to pay the expenses —no motion to vacate that judgment can be entertained, and if such a motion is filed it should be stricken from the files, and the jurisdiction of the county court is not affected thereby.</p> <p>2. -: -: -: Change In Judges: Transfer to-Circuit Court. And if after such final judgment is rendered, there is a change in the membership of the county court and two of the new judges are of kin to parties in interest in the organization, such motion to vacate and annul the judgment previously rendered is filed, and the cause 'is certified to the circuit court and by that court the motion is overruled and the cause is certified back to the county court, the county court has jurisdiction to proceed with the matter, and had not at any time lost jurisdiction, for there is no provision in the statute for such a motion.</p>

Mandamus. ' (1) Art. 2 of Chap. 49, B. S. 1909, contains the law of this State in reference to the preservation of fish and game, specifies the salary of the game warden, and provides that it shall be paid out of the game protection fund by warrant drawn by the State Auditor .on said fund in the hands of the State Treasurer.

PROHIBITION. (1) Respondent had no jurisdiction to make the orders and this case, is on all fours with the ease of State ex rel. v. Muench, 217 Mo. 124. (2) In its more general sense, the term jurisdiction when applied to a court is the power residing in such court to determine judicially a given action, controversy, or question presented to it for decision.

Louis Court of Criminal Correction. —Hon. Wilson A. Taylor, Judge. (1) The traffic in intoxicating liquors in the State of Missouri is declared by law to be illegal. It is not a primary, natural or fundamental right, but is an occupation which no one has the right to pursue without a license. State v. Austin, 10 Mo. 591; State v.. Hudson, 13 Mo.

— Hon. H. L. McCune, Judge. (1) Forfeiture, of a contract of insurance is not favored by tbe court. Tbe defense in this case is based solely upon tbe claim tbat tbe contract of insurance was forfeited by tbe insured on account of a breach of a warranty that in no way affected tbe event from which tbe liability arose. In other words, tbe same result would have happened and tbe same liability' would have accrued if tbe breach of warranty bad not occurred.

— Hon. James E. Goodrich, Judge. (1) The State cannot maintain an action on this bond at the relation and to the use of John P. Bell as treasurer of State Hospital Number 1. Connor v. Zaekry, 117 S. W. 177; State v. Moody, 202 Mo. 120. (2) The bond has no retroactive application. The defendant in no case could be answerable for any misconduct of Thomas, except such as occurred after the execution and delivery of the bond, to-wit, May 9,1903.

— Hon. E. P. Gates, Judge. (1) Defendant’s demurrer to the evidence should have been sustained by the trial court, as there was no substantial evidence upon which to submit the case to the jury. Powell v. Railroad, 76 Mo. 80; Commissioner v. Clark, 94 U. S. 284; Bank v. State, 10 Wall. 639; Jackson v. Hardin, 83 Mo. 175; Avery v. Fitzgerald, 94 Mo. 207; Long v. Moon, 107 Mo. 338; Moore v. Railroad, 28 Mo. App. 622; Peck v. Railroad, 31 Mo.

— Hon. Hermann BrumbacJc, Judge. (1) The court erred in overruling defendant’s motion to quash the jury panel. The law under which said panel was drawn is unconstitutional in that it violates Sec. 8 of Art. 14, of the Constitution of Missouri. State ex rel. v. Smith, 87 Mo. 158; County v. Henderson, 119 Mo. 32; Stanbury’s Case, 8 Wall.

— Hon. N. M. Bradley, Judge. (1) “Petition for partition shall be filed in the circuit court of the county, in which such lands, tenements or hereditaments lie.” E. S. 1909, sec. 2650. (2) “The statute directing in what counties partition suit is to be brought is mandatory, and not simply directory.” Johnson v. Detrick, 152 Mo. 255. (3) Cass circuit had no jurisdiction of the subject-matter.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) Where the officer serving the writ without the State of Missouri swears to it before anybody but the “clerk or judge of the court of which he is an officer,” the return is void. R. S. 1899, sec. 582; R. S. 1889, sec. 2029; Russell v. Grant, 122 Mo. 179; Murdock v. Hillyer, 45 Mo. App. 287; Adams v. Heckscher, 80 Fed. 742; Barber v. Morris, 37 Minn. 194; Harris v. Sargent, 37 Ore. 41; State v. Foreman, 121 Mo.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) Plaintiff has not in any sense of the word ever had an accounting. Storm’s own letters show that he was still acting under the powers of attorney at a date subsequent to the date of the alleged statement rendered. Besides that statement, was objected to and never assented to by plaintiff or her attorney, but they both repudiated it as inaccurate.

Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge. (1) Plaintiff cannot question the validity of the incorporation of the Miller Company in this action, and, whether one or more of the incorporators failed to sign the articles, does not affect the validity of the incorporation. Bank v. Rockefeller, 195 Mo. 15; Webb v. Rockefeller, 195 Mo. 57; Haskell v. Worthington, 94 Mo. 560. (2) Nor can plaintiff claim that the Miller Co. was acting outside its charter powers.

— Hon. Walter A. Powell, Judge. (1) The jury were not authorized to fill up gaps in the evidence by mere speculation. Bank v. Railroad, 98 Mo. App. 330; Tibbe v. Kamp, 154 Mo. 580. (2) There was no proof of undue influence, nor any proof.that any such influence was operative in the making of the will.

Louis City Circuit Court. — Ron. Jesse A. McDonald, Judge. (1) The 200 shares of stock in the Landis Wax Thread Sewing Machine Co. were issued to Mrs. Landis, as trustee for the benefit of certain small creditors and then for the benefit of her children. (2) The trust was executed by the transfer of the property, i. e., the delivery of the stock to Mrs. Landis, the trustee.

<p>1. EQUITY: Lawyer and Money-lender. In equity lawyer and money-lender, borrower and lender, meet upon a dead level.</p> <p>2. -: Evidence: Remote and Extraneous Matters. Evidence tending to show that plaintiff and defendant, during a long business acquaintance, had many joint transactions in mining enterprises, in which defendant carried plaintiff for large sums and exacted usurious interest under cloak of commissions and brokerage, is not germane to the subject-matter of a suit to enjoin execution of a judgment based on a note secured by a pledge of mining stock, and is not competent.</p> <p>3. -: -: Indorsement of Note: For Consideration: For More Than Year. An oral agreement to indorse the original and renewal note of plaintiff at the hank, at $50 per indorsement, until plaintiff was put in position to pay the same by realizing on his collaterals, is not one to he performed within a year, and therefore would not support an action under the Statute of Frauds, and hence is not competent proof to show that the indorser fraudulently permitted the bank to foreclose its lien on the collaterals, or that the indorser after having paid the note fraudulently took judgment thereon.</p> <p>4. -: -: -: —-: No Attempt or Ability to Perform. But even if the Statute of Frauds did not apply, yet as there was no proof that the bank was willing to accept the indorSer’s new (indorsement, none that the plaintiff had other ' ■ collaterals on which to realize or made any reasonable attempt to. fulfill his part of the agreement “by realizing on his other collaterals,” and none that he made any attempt to avert his injury by securing another indorser, or tried to place his loan elsewhere, there was no error in excluding that testimony.</p> <p>5. PROMISSORY NOTE: Collateral: Purchase By Indorser. The indorser of a note, secured by a pledge of stock, has the right, when the note becomes due and the stocks are sold under the pledge, to buy them, have the amount paid therefor credited on the note, pay the .balance, and claim the stock as his own, and thereafter to sue for the balance so paid, and he does not commit any fraud in so doing.</p> <p>6. FRAUD: Setting Aside Former Judgment at Law: Res Adjudicata. Where a plaintiff once had his day in court and jould have set up' as a defense the fraud he now claims shows the judgment therein should be set aside, the matter becomes res adjudicata. When the help of a court of equity is asked to undo what has already been adjudged by a court, fraud in the cause of action itself, in false allegations or false testimony, will not suffice. Plaintiff’s own negligence or carelessness or failure to make the defense available to him in the former suit will bar his right to have the judgment therein set aside. Fraud entitling him to relief must be fraud arising on éxtrinsic matter whereby he or the court was tricked, and the court was made an instrument of injustice. He cannot stand by and know the suit is pending, and make no effort to present his defense, and after judgment has gone against him come into a court of equity and have that judgment set aside on the ground that if he had presented to the court in that case the matters he now sets up in his bill he could have defeated that judgment.</p> <p>7. —;-: -: -: Motion for New Trial. Where defendant in the law case filed a general denial and after judgment had gone against him filed a timely motion for a new trial, and therein presented his defenses on the merits and the reasons the trial should have been postponed till those defenses could be made effective by proper pleadings and evidence, and that motion being overruled he voluntarily failed to prosecute his appeal, the matters therein become res adjudicata, and he does not have the right to have that judgment set aside by a court of equity. And he cannot offer as aq 'excuse for not appealing that plaintiff therein did not sue out exeQirtiQa until a year had gone by.</p> <p>8. PLEDGE: Option: Redemption: Contract to Repurchase. An agreement to surrender stock upon condition that plaintiff pay a judgment is not a pledge of the stock, but a conditional sale, an option to repurchase within limits, and not being performed' within the time named and no tender being made, plaintiff has no right to redeem. The right to redeem pertains to a mortgage or a pledge. But the purchase of stocks by an indorser of a note secured by a pledge of stocks, at a regular foreclosure sale, does not constitute the purchaser a pledgee; and an agreement to surrender the stocks so bought to the maker of the note upon his payment of the debt, is not a mortgage or a pledge, but a conditional sale.</p> <p>9. EXECUTION: Excessive Levy: Injunction. A levy of execution will not be set aside on the ground that an excessive amount of property was levied upon. The execution debtor has the right to elect the part he wishes sold first, and if the sheriff abuses his discretion he still has a remedy in a timely motion to set aside the sale.</p>

St. Louis City Circuit Court.— Hon. Jesse A. McDonald, Judge. (1) No judgment should he given for damages on a bond for temporary injunction until a final disposition of the case is reached on its merits and a final decree rendered, which had not taken place in this cause when judgment on the bond was entered in favor of some of the obligees, and not all. Railway v. Railroad, 135 Mo. 554; Price v. Calumet, 82 Mo.

<p>Appeal from Henry Circuit Court. — Hon. C. A, Benton, Judge.</p>

<p>1. ATTACHMENT: Service by Publication: Initials in Lieu of Christian Name. Except in cases presenting certain elements .of estoppel, service by publication directed, to a defendant by initials in lieu of his Christian name is wholly insufficient, and a judgment rendered ’ pursuant thereto is itself void.</p> <p>2. FINDING OF FACTS: Judgments: Presumptions. A finding of facts, characterized as “partial,” made by the trial court on its own motion, which finding possesses none of the requisites of- a statutory special and separate finding, does not diminish, the force or number of the usual presumptions which the law summons to the support of general- judgments, in trials before the court without a jury, when those judgments are called in question before the Supreme Court.</p>

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) There is no substantial evidence in the record of this case that the testator’s will was the product of undue influence, and the court should have sustained the demurrer to respondents’ evidence.

(1) (a) The Constitution divides the powers of government “into three distinct departments — the legislative, executive and judicial — each of which shall he confided to a separate magistracy, and no… Held: A banker is not privileged from being examined or producing his books to show the state of a cusT tomer’s account. Loyd v. Freshfield, 2 C. & P. 325; Emmott v. Newspaper, 62 L. J. Q. B. D. 77; Stannum v. McRae, 18 Ont. Pr. 185; MacKenzie v. Taylor, 6 L. C. Jur. 83.

— Hón. J. L. Fort, Judge. (1) The court erred in excluding the sheriff’s deed as evidence of plaintiff’s title. The sheriff’s deed is, in form and substance, in compliance with the statute and its recitals are prima-facie evidence of their truth. E. S. 1889, sec. 4954; Lewis v. Curry, 74 Mo. 49; E. S. 1889, sec. 7684; Hall v. Kleipzig, 99 Mo. 89; Cruzen v. Stevens, 123 Mo. 346. Mere irregularities will not ordinarily invalidate a sheriff’s deed. 17 Am. and Eng. Eney.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) The constitutive' facts of the registration ■of the principal are not alleged to have been done '“against the peace and dignity of the State.” In ■other words, the contention of defendant is that the allegations of the indictment are insufficient to charge the principal with the commission of a felony or any ■other offense; and if .the indictment thus fails to ■charge the commission of a felony by the principal…

— Eon. Henry G. Riley, Judge. (1) (a) Plaintiffs had counted upon a fee simple estate, and they allege in their petition that they have such estate, Having so alleged they must prove this title or fail. Stewart v. Land Co., 200 Mo. 281; Phillips v. Trust Co., 214 Mo. 669. (b) There was no proof as to whether Richard Maynor died testate or intestate. But the presumption will, of course, prevail that he died intestate in the absence of proof.