Volume 237 — Missouri Reports

— Hon, Jesse C. Sheppard, Judge. (1) The proceedings for the organization of this drainage district are controlled by the drainage law in force at the time; the subsequent transactions, by the law then in force. State ex rel. v. Taylor, 224 Mo. 463. (2) Under the law in force when these proceedings were had, personal service upon landowners resident in the county was required. R. S. 1899, sec. 8286.

— Son. Samuel Davis, Special Judge. (1) Under the will of Henry Hooss, deceased, Barbara Hooss was given a life estate. A power of sale or disposal added to a devise of a life estate, does not enlarge the estate devised into a fee in the first taker.

<p>1. APPELLATE JURISDICTION: Petition, and Demurrer Sustained: Amount in Dispute: How Determined: Interest. Where a demurrer to the petition was sustained, and plaintiff appealed, the court, in determining its .appellate jurisdiction, is not confined to the prayer of the petition in determining what is the monetary amount in dispute, but must take the whole instrument and determine what sum was involved and at issue at the date of the judgment from which the appeal is taken. And if the principal sum demanded, together with interest up to the date the judgment was rendered, amount to less than $7,500, the Supreme Court does not have jurisdiction of the appeal.</p> <p>2. -: Drainage District: Political Subdivision of State. A drainage district is not a political subdivision of the State in the sense of those words as used in the Constitution giving the Supreme Court appellate jurisdiction in a case in which a political subdivision of the State is a party. The words there used, "county or other political subdivision of the State,” mean a county, or such political subdivision as may be created having powers similar to those of a county, and do not include townships, school districts, levee districts, drainage districts, and such like minor political subdivisions of the State.</p>

— Hoot. Won. G. Ellison, Judge. (1) The proceedings under review were a continuation of the proceedings instituted to establish the drainage corporation. In those proceedings Judge Ellison had granted a change of venue and had disqualified himself, consequently he remained disqualified. Coltrave v. Templeton, 106 Fed. 370; In re Williams, 123 Fed. 321; Tabell v. Griggs, 3 Page (N. Y.) 207. (2) The court should have granted a hearing before a jury.

— Hon. William G. Ellison, Judge. (1) The court erred in refusing to order removal of case to Federal court: (a) A drainage district proceeding is removable when necessary diversity of citizenship exists and amount in controversy is sufficient.

<p>. Appeal from Holt Circuit Court. — Hon. Wvn. G. Ellison, Judge.</p>

<p>1. CONSTITUTIONAL LAW: Title: Not as Broad as Act: Opin- - ions of Courts: Copies to Be Furnished Attorneys. Thetitleof the act is: "An Act to provide stenographers for the judges of the Supreme Court and the judges of the several Courts of Appeals which are now established or which may hereafter be established in this State, and to define their duties and to regulate their salaries and compensation, and to repeal all laws now existing on the same subject.” The body of the act requires the stenographer of each judge of the Supreme Court and of the Courts of Appeals to make four copies of the judge’s written opinion in a case, to furnish one copy to the reporter of the court, and three copies to the clerk, who is required to furnish, free of charge, one copy to the attorney for appellant and another to the attorney for respondent. The act thereby deprived the clerk of the Supreme Court of the fees he was permitted by existing statutes to charge for copies of opinions, and which fees he was authorized to use in paying his own salary and in compensating his deputy and assistants, up to certain named amounts, the excess to be turned into the State treasury. Held, that the title gave no notice that the body of the act deprived the clerk of his right to charge attorneys for copies of opinions, and as to such matters the body of the act is broader than the title, and is therefore void.</p> <p>2. -: Public Funds for Private Use: Free Copies of Court Opinions to Attorneys. Since the salaries of stenographers of judges are paid out of the State Treasury, and their stationery, typewriters, etc., are furnished by the State, and since the law permits the clerk of the Supreme Court to charge for copies of opinions filed in his office, and to use so much of the fees thus collected as is necessary to pay his own salary and the salaries of his assistants, and requires him to turn the surplus into the State Treasury, the statute which requires the stenographers of the judges of the Supreme Court and Courts of Appeals to furnish, free of charge, a copy of the opinions of the judge to attorneys of private litigants in a case, is void, since it is an expenditure of public money for a private use, which the Constitution prohibits.</p>

Prohibition. The preliminary writ in prohibition having issued as an exercise of discretion by this court, this case should be decided upon its merits, in the furtherance of justice.

Circuit Court. — Hon. Willard P. Cave, Special Judge. (1) The intent of the testator was that the four children and the grandchild should each get one-fifth in value of the estate. So far as the interest of Margaret Ellen Moran is concerned, it was to consist exclusively of personalty, it being expressly contemplated by the will that either the four children or the two sons should take the farm.

— Hon. Joseph J. Williams, Judge. (1) When, in an action at law, equitable questions are interposed, the entire case is thereby converted into a suit in equity, and will be so regarded, both in the trial court and on appeal. Durfee v. Moran, 57 Mo. 375; Saving Inst. v. Collonious, 63 Mo. 295; Allen v. Logan, 96 Mo. 597; McCullum v. Boughton, 132 Mo. 621; Swon v. Stevens, 143 Mo. 392; Lewis v. Rhodes, 150 Mo. 501; Ridgeway v. Herbert, 150 Mo. 612.

<p>Appeal from Cape Girardeau Court of Common Pleas. — Hon. Joseph J. Williams, Judge.</p>

<p>Appeal from St. Louis Court of Criminal Correction. —Son. Benj. J. Klene, Judge.</p>

— Hon. Louis Hoffman, Judge. (1) The amendment of 1881 does not contravene section 28, article 4, of the Missouri Constitution.. Burgdoerfer Case, 107 Mo. 30. (2) The amendment to the act of the Legislature, approved March 26, 1881 (Laws 1881, p. 114), prohibiting persons removing or placing in public roads or highways, or in the streams or water courses other than the Missouri or Mississippi rivers, is presumed to be constitutional.

— Hon. L. B. Woodside, Judge. (1) Signing a deed, and taking and certifying an. acknowledgment to it, are separate and distinct acts. One is a private act, the other an official act; both cannot be done by the same person. And the forgery of a deed and the forgery of a certificate of acknowledgment to a deed are separate and distinct offenses. Sec. 4636, R. S. 1909; State v. Tobie, 141 Mo. 547; State v. Reed, 141 Mo. 546.

— Hon. L. B. Woodside, Judge. The court erred in overruling the motion to quash the information and in overruling the demurrer to the information. The information on its face discloses the fact that the same was not filed, nor the defendant charged, for eighteen months after the alleged offense is said to have been committed.

— Hon. Wm. H. Martin, Judge. (1) The constitutional provision that all indictments shall conclude with the words, “against the peace and dignity of the State,” is mandatory. “Agains” the peace and dignity of the State, does not comply with this mandate. State v. Campbell, 210 Mo. 202; State v. Lopez, 19 Mo. 254; State v. Clevenger, 25 Mo. App. 653; State v. Pemberton, 30 Mo. 376; State ,v. Stacy, 103 Mo. 11; State v. Ulrich, 96 Mo. App. 689.

— Hon. L. B. Woodside, Judge. (1) The' defendant is being prosecuted for a felonious assault. In such cases the gravamen of the offense is the assault. This class of assault is not a creation of the statute; it was a misdemeanor at common law. In order to sustain a conviction in such a case, it is necessary for it to be alleged in the information that the assault was committed with a felonious intent.

— Hon. Charles D. Stewart, Judge. (1) The information is duly verified, valid and sufficient. It is a copy of the indictment approved in State v. O’Keefe, 141 Mo. 272. This form of information has been approved by this court many times. State v. Primm, 98 Mo.- 368; Kelley’s Crim. Law and Prac., see. 555. It adequately individuates the offense.

St. Louis City Circuit Court. — Hon. Geo. C. Hitchcock, Judge. No bill of exceptions was filed in this case. Tbe record proper is free from error, and the judgment should be affirmed. State v. Morgan, 191 Mo. 191. (1) The indictment is in proper form. Sec. 4449, R. S. 1909; State v. Woodward, 191 Mo. 617; State v. Lowe, 93 Mo. 547; State v. Minor, 193 Mo. 597; State v. Myers, 198 Mo. 225. The defendant was duly arraigned and entered his plea of not guilty.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Instruction 1 concisely sets out the offense as defined in the statute, and fairly presents to the jury the law under the facts in evidence. Sec. 4441, R. S. 1909; see.'5800, R. S. 1909; sees. 2 and 10, art. 8, Missouri Constitution.

— Hon. L. B. Woodside, Judge.. (1) The record is silent in this ease as to the convening of the court, the impaneling and swearing of the grand jury, at the time this indictment was returned into court, hence the court had no jurisdiction to try the cause. R. S. 1909, sec. 5066; State v. Hurst, 123 Mo. App. 39; State v. Bobbst, 131 Mo. 335; State v. Lord, 118 Mo. 1; State v. Armstrong, 167 Mo. 267.

— Eon. John T. Moore, Judge. (1) The first section of the “Order House Act,” Laws 1907, pp. 231 and 232, upon which the main charge in this information is based, is unconstitutional. State v. Rawlings, 232 Mo. 544.

— Hon. D. E. Blair, Judge. (1) In departing from the universal course of procedure, the Legislature evidently believed that justice would be best subserved by leaving the question of punishment to the judge, as the judge, by reason of his education and experience in the trial of such and kindred eases, would be supposed to be better qualified to assess the punishment than a jury, fresh from their farms, shops and business houses, and without experience, in the weighing of…

— Hon. N. D. Thurmond, Judge. The instructions are full, fair and complete. They leave it to the jury to determine whether or not the knife used by appellant? was a deadly weapon.

<p>Appeal from Jasper Circuit Court. — Hon. Henry L. Bright, Judge.</p>

— Hon. C. H. Skinker, Special Judge. (1) The exception as to the conversation of appellant with a policeman, to whom he had admitted the commission of the act, for the reason that appellant was under arrest and in the custody of an officer at the time, is not well taken. There were no threats nor duress used in order to elicit the admission from appellant. State v. Daly, 210 Mo. 676. (2) Instruction 2 upon circumstantial evidence was properly refused.

— Hon. Chas. D. Stewart, Judge. (1) The information is valid, sufficient and adequately defines the defense, and is in the language of the statute. State v. Chandler, 24 Mo. 371; State v. Webster, 77 Mo. 566; State v. Jones, 86 Mo. 628; State v. Seward, 42 Mo. 206; State v. Hendrickson, 165 Mo. 262. The information follows the language of the statute in defining the offense, and the offense being a statutory one, that is all that is necessary.

<p>Appeal from St. Louis City Circuit Court. — Hon. Geo. H. Shields, Judge.</p>

<p>This case is decided upon the authority of State v. Branch, ante, p. 250.</p>

— Hon. F. C. Johnston, Judge. (1) No futile attempt to withdraw, or strenuous endeavor to recede and decline further struggle, could avail defendant anything whatever under the terms of instruction 10.

<p>1. EVIDENCE: Plat: Must Be Correr.t. Plats and diagrams, descriptive of the place or locality involved in the issues on trial, to be admissible as independent evidence, must be shown to be accurate and correct. If the plat offered is shown to be so inaccurate that it would be confusing rather than helpful to the jury, it is properly excluded.</p> <p>2. -: Sufficient to Support Verdict: That of Adverse Party. If there is substantial evidence tending to prove the offense charged, the verdict will not be disturbed on appeal. And in determining its sufficiency, the court is not restricted to the testimony offered by the State, but will consider all evidence in the case, without regard to the party by whom it was introduced.</p> <p>3. -: -: Defendant's: Maiming and Wounding Another. Defendant testified that prior to November- 13th some one entered his house and several times some one had been prowling about his house at night; that he had prepared to watoh his premises to find out who the prowler was; that he concealed himself about fifty feet southeast of his house, with a double-barrelled shotgun, about 6:30 p. m., to watch for the trespasser; that in about thirty minutes he saw a man come to a lighted window on the south side of the house and peer through it, then back off, crouch down, remain in a crouching position for a short time, then arise and walk around to the north side, then return in a moment, walk close up to the window and stand looking into the house through the window; that the night was dark and he did not recognize the man; that he then aimed the gun at the man’s legs, and fired; that the man turned around two or three times as if startled and confused, and then ran west towards defendant’s front gate; that he ran towards him, called to him to stop, and, as he heard him still running, fired again in the direction in which the man had run; that carrying his gun, he ran towards the gate, and just before he reached it the man ran against it, and defendant ran up to him and for the first time recognized the man as a neighbor; that he struck at the man with his gun, and then dropped, the gun and grappled with him; that they fell to the ground and then a struggle ensued, with first , one and then the other on top; that the man drew his knife and cut défendant on the hand, after which defendant drew his own knife and began cutting at the man; that he realized that if the fight continued he must either kill the man or be killed by him, and for that reason he abandoned the conflict and ran back into his house, leaving his gun where it had fallen;' that, all this happened inside of defendant’s yard; and that he went into his house and did not go out until sometime the next morning. The man was found in a short time in the public east-and-west road, about one hundred yards west of defendant’s house, lying across a shotgun that was shown to belong to defendant, and was in great distress, was bleeding profusely, had been shot in the legs below the knees, and had been cut in the cheek with a sharp instrument. Held, that ■defendant’s own testimony fully warranted the verdict, convicting him of maiming and wounding by shooting with a shotgun.</p> <p>4. SELF-DEFENSE: Inconsistent with Defendant’s Testimony: Instruction. The defendant in a criminal case’is entitled to an' instruction submitting the defense of self-defense, although such defense is inconsistent with his.own testimony and arises upon facts and circumstances expressly denied by him, if such issue necessarily arises from testimony of the prosecuting witness or other witnesses.</p> <p>5. -: -: -: On All Law of Case. Under the statute (See. 5231, R. S. 1909), providing that, in criminal cases, “whether requested or not, the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving their verdict,” it is the duty of the court to give a proper, instruction on the subject of self-defense, whether requested or not, if there is substantial evidence tending to prove that the defendant acted in self-defense, whether such testimony was introduced by the State or by the defendant, or in part by each, or whether it was introduced by the State and denied by the defendant.</p> <p>6. -: -: -: -: Defendant as Witness: Judicial Admission. When defendant goes on the stand as a witness, his testimony against Ms interest does not rise to the digMty of a judicial admission, and dofe°-therefore preclude him from asserting rights based upon any other competent testimony in the case.</p> <p>7. -: When Available. If a person has reasonable cause to apprehend immediate danger of death or great personal injury, he has a right to use such force as appears to Mm to be reasonably necessary to protect Mmself against such impending danger.</p> <p>8. -: -: Upon Testimony of Prosecuting Witness Alone: Instruction. The prosecuting witness testified that about seven o’clock of a dark November Mght he saw a man near Ms house and approacMng Ms door; that the man walked away and got over the fence into the orchard; that he followed and called, “Hello,” but received no response; that hearing the man runMng north he followed Mm and both ran through the timber and field for a distance of over a fourth of a mile; that when about ' half way across the field he, seeing the man was runmng in the direction of defendant’s home, believed the man was defendant, and thereafter he kept to the east so as to be between the man and defendant’s home; that when they were near a barbed wire fence on the north side of the field, wMeh belonged to Mm, along a public road, and near the defendant’s home, not hearing defendant, he advanced, looking for Mm, when a shot was fired close to Mm; that defendant then called Mm by name and told Mm not to come further or he would shoot again; that without speaMng he continued to advance upon defendant, when a second shot was fired; that he then heard defendant getting tMough the wire fence into the public road, and he also got over the fence and into the road, between the defendant and Ms home, whereupon they grappled, and fighting fell to the ground, and while they were fighting defendant cut Mm with a knife. There was evidence that defendant bore ill will to the witness, and also that the ill will was mutual. Held, that upon tMs testimony alone it was in-, cumbent upon the court to give an instruction on self-defense, although according to defendant’s own testimony there was no right of self-defense in the case.</p>

— Hon. James D. Barnett, Judge. (1) While the case at bar is in many respects similar to the case of Smoot v. Judd, 184 Mo. 508, yet the law as laid down by the majority in that case is not applicable to the facts in this. In the Smoot case, everything was regular. That is, the return of the officer showed not only a personal service, but the service itself was in the statutory time for actions of that kind.

Habeas Corpus. (1) The commission under which the notary assumed to act was void for the reason that no showing was made to the circuit clerk by evidence, petition, application, affidavit or otherwise. R. S. 1909, secs. 5171, 5173, 6385, 6386 and 6398; 13 Cyc. 859, 860, 868, “9” (b).

<p>This case is decided upon the authority of the case of Ex parte Welborn, ante, p. 297, with which it is identical as to all material facts.</p>

Lords City Circuit Court. — Hon. James E. Withrow, Judge. (1) The city of St. Louis had authority to assess, levy and collect' taxes on the property in question. Art. Y, sec. 1, City Charter. (2) The State of Missouri had authority to assess, levy and collect taxes on the property in question. Art. 10, Constitution. (3) The State, by statute, provided for the assessment, levying and collecting of taxes on the property in question.

Prohibition. (1) All of the returns of. the special constable appearing in the record in this case are insufficient to confer jurisdiction in this: (a) The, original return of the special constable is insufficient in that it appears affirmatively on the face of the return, “Said defendant corporation, American Pigment & Chemical Company, having no business office in St. Louis at time of service.” Sec. 3862, R. S. 1899; see. 7423, R. S. 1909.-(b) What purports to be the first…

Quo Warranto. (1) The respondent, the Missouri Pacific Railway Company, has violated the provisions of . its charter, the Constitution, laws and public policy of the State of Missouri, and has been guilty of a usurpation of franchise by becoming the owner of all of the stock in said coal companies and elevator company, and bycondueting, controlling and operating the business and affairs of each of these companies.

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. (1) The action of the,circuit court in overruling defendant’s exceptions to the report of the referee is not open for review by this court because defendant did not in its motion for a new trial complain of that action of the trial court. State ex rel. v. Hurlstone, 92 Mo. 327; Arkansas Land Co. v. Ladd, 103 Mo. App. 83; Bosley v. Cook, 85 Mo. App. 422.

<p>APPEAL: Matters Reviewable: Evidence Not Preserved. Where the testimony taken before the referee is not preserved by a bill of exceptions, the court cannot review the findings of facts made by the referee, although such finding is accepted by the appellant as a correct statement of the facts; and where there is no material questions raised by appellant’s exceptions to the referee’s report that do not turn on the probative force of the testimony, the appellate court’s only duty is to affirm the judgment.</p> <p>Held, by VALLIANT, C. J., dissenting, that, as the facts, as found by the referee, are admitted by both parties to be true, and as those findings of facts are before the court, there remains only a question of law for consideration, which is whether or not the right judgment. has been applied to those facts, and that question the court ought to consider.</p>

. Quo Warranto. (1) The commissioner, who heard the testimony and had the witnesses before him, reports that from the evidence adduced the International Harvester Company was organized for the express purpose of suppressing competition, and that respondent has been, and is. maintained by the International Harvester Company solely in furtherance of that unlawful purpose.

<p>1. NEGLIGENCE: Speed of Car: Testimony of Non-Expert. Witnesses who saw the ear in motion, though not experts as to the speed of oars, are competent to testify the speed of the car immediately before and immediately after its collision with plaintiff’s carriage.</p> <p>2. -: Contributory Negligence as Matter of Law. The facts in evidence in this ease did not authorize the court to rule that the driver of the carriage across the railway track in front of an approaching street car was as a matter of law guilty of contributory negligence, but whether he was or not was an issue of fact which should have been submitted to the jury under proper instructions. If' the only facts were that the driver when he was twenty-two feet from the track saw or could have seen a car approaching two blocks away, that he was driving about eight miles an hour and could have stopped the carriage within ten feet, then a ruling to the effect that as a matter of law he was guilty of contributory negligence would have been proper. But where the other facts were that the heads of the horses were only eight or ten feet from the track when the driver was twenty-two, that he could not have stopped the horses within eight or ten feet, which would have brought their heads to the track’s rail, that he did not discover the car was running in excess of the ordinance speed until the team was within three feet of the track, which fact made it impossible for him to stop the horses in time to avoid the collision if he could not stop them within eight or ten feet, as the evidence tended to show, such a ruling was error.</p> <p>3. -: Of Master’s Servant: Imputable to Wife. The negligence of the master’s servant is not imputable to the master’s wife. Nor is thé negligence of the husband ordinarily to be imputed to his wife, in case she is injured by his and another’s concurring negli-. gence. So that where there was some testimony tending to show that the servant in driving the carriage, in which were the plaintiff and her husband, was guilty of contributory negligence, and the testimony as to whether the driver was the servant of plaintiff or the servant of her husband was conflicting, the negligence of the servant, resulting in plaintiff’s injury, even if established, could not as a matter of law be imputed to her. However, the negligence of the servant is imputable to his master, and if the latter is injured through the concurring negligence of the servant and that of some other perspn, the negligence of the servant will bar a recovery of damages by his master from such other person.</p>

Prohibition. (1) “Prohibition is an extraordinary remedy and will not he where the party claiming it has adequate remedy by ordinary means, and the ordinary m'eans that will defeat the application for this writ must be sufficient to afford the relief the case demands.” State ex rel. v. Aloe, 152 Mo. 483; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Denton, 128 Mo. App. 314.

Certiorari. (1) The county court did not have power to order all the county officers, courts and public records removed from the county seat, and the record should be quashed. This contest has been before this court several times before. State ex rel. v. Elkins, 130 Mo. 9; State ex rel. v. White, 162 Mo. 533.

— Row. Fred Lamb, Judge. (1) This tax belongs to Penn township; it was levied in April 1909, under the provisions of section 10,326, laws 1907, p. 419, and sec. 10,327, R. S. 1899. This section was repealed by sec. 19, p. 876-, Laws 1909, being sec. 11,767, R. S. 1909.

Mandamus. The issue here is upon what property should the cost of the paving of these areas formed by these street and alley intersections be assessed; whether entirely on the property fronting on Bryan street, or whether one-half of the cost of such intersections should be. assessed on the property fronting on Bryan street and the other half thereof on the property fronting-on the intersecting streets.

— Row. J. C. Sheppard, Judge. (1) The payment of the taxes by appellant extinguished the State’s lien and this being a direct proceeding to set aside the back tax judgment and back tax deed, the payment of the taxes and all other facts and circumstances in the case were properly pleaded.

Court of Common Pleas. —Hon. Benjamin F. Davis, Judge. (1) The petition does not state facts sufficient to constitute a cause of action in equity and to support the judgment herein. Said petition shows on its face that equity will not lie.. Janney v. Spedden, 38 Mo. 402; Holland v. Johnson, 80 Mo. 34; Russell v. Lumber Co., 112 Mo. 40; Clark v. Life Ins.

— Hon. James D. Barnett, Judge. (1) The policies a.re interdependent; each company is interested in the fixation of the true amount of loss; each of the actions at law presents the same 'questions, questions of law and fact in which each and all of the parties to the petition are equally interested. If the petition is sustained, a multiplicity of suits is thereby prevented.

— Row. J. L. Fort, Judge. (1) The exemplified copy of the record of the proceedings in the case of Sheip & Vandergrift v. Norman, pending in the court of common pleas No. 5 for the county of Philadelphia, State of Pennsylvania, which shows that said court was a court of record, having a judge, a clerk, a sheriff and a seal, is conclusive proof that such court is a court of general jurisdiction, and that it had jurisdiction of the subject-matter of the action and of the…

<p>This case is decided upon the authority of Norman v. Pennsylvania Fire Insurance Co., mte, p. 576.</p>

<p>1. ABANDONING PUBLIC ROAD: Rights of Abutting' Owners. It has always been competent in this State for the public to abandon the right to highways and public roads. The only limitation is that they must not be abandoned to the injury of the vested rights of abutting owners or persons similarly situated, and these rights may also be abandoned by those entitled to assert them.</p> <p>2. -: Proof: Matter in Pais. Proof of the abandonment of a public highway may be shown by evidence of matters in pais as well as by proceedings in court or other public records.</p> <p>3. -: Nonuser: Sec. 10446, R. S. 1909. The terminology of the second clause of Sec. 10446, R. S, 1909, shows that it is applicable to the abandonment of any public road by nonuser for ten years continuously. Hence there is no reason why the clause should be construed as having been intended to apply only to roads which the public acquired through imperfect proceedings in the county court, although, it is true, the first clause of the section regulates acquisition through such imperfect proceedings. ■'</p> <p>4. -: Acts of Parties Entitled to Highway: Statute of Limitations. The loss of the right to a public road, resulting from abandonment or vacation by the public, accrues from the acts of the parties entitled to the highway, and not from the adverse or hostile possession of others; hence there is no room for the application of the rule that titles cannot be builded against the State xipon the Statute of Limitations.</p> <p>5. -¡'Statute of Limitations: Later Legislative Act. Section 10446, R. S. 1909, provides in plain terms that “nonuser by the public for a period of ten years continuously of any public road shall be deemed an abandonment of the same.” That section was adopted in 1887, while the inhibition upon the running of the Statute of Limitations against the State became effective August 1, 1866. Therefore, even if it could' be held that the right of the public to abandon a road was governed by the Statute of Limitations, this would no longer be the case after the adoption of the Act of 1887.</p>

— lion. Argus Cox, Judge. (1) A motion in a suit at law cannot be made to take the place of and be substituted for a bill in equity. Pbillipps v. Evans, 64 Mo. 23; Davis v. Robinson, 126 Mo. App. 293';.Hull v. Sberwood, 59 Mo. 172; Holden v. Vaughan, 64 Mo. 588; Johnson v. Sherrod, 141 Mo. App. 367; State ex rel. v. Riley, 219 Mo. 667; Steel Co. v. Railroad, 165 Fed. 467 ; 2 Freeman on Executions, sec. 310; Rorer on Judicial Sales, sec. 965; Annison v. Williams, 54 Am.

” Appeal from Buchanan Circuit Court . — Eon. G. A. Mosman, Judge. (1) Proceedings to grade streets in cities of the second class are proceedings in rem, and .the court may acquire jurisdiction by publication, and when sucb notice bas been duly published, and the parties do not appear at the proper time and present their claims for damages, they will be held to have waived their right to complain of what was clone by the court. Kansas City v. Duncan, 135 Mo. 571.

— Hon. Henry L. Bright, Judge. (1) The deed from the cnratrix of the plaintiff to his interest in the real estate described in the petition, dated February 12, 1906, offered in evidence by the defendant was and is void for the reason that the order of sale was made by the probate court in vacation. Probate courts in this State are courts of record.' R. S. 1909, sec. 4055; R. S. 1909, sec. 3870.

<p>1. NEGLIGENCE: Order of Foreman: Immediate Obedience. The plaintiff was employed, under defendant’s foreman, in rebuilding defendant’s bridge. While doing work at said foreman’s direction he was injured by the moving of a flat car and pile driver by said foreman’s order. According to' the testimony of plaintiff’s witnesses the foreman’s order to plaintiff was, “Go down and tighten it; have not time to put in another bolt.” If that was true, then, despite the facts that it was the next duty of the car to back out, that the work was rushed, and that the usual course of things was for the car to go instantly back for its next load (if that were true), the plaintiff was nevertheless warranted in thinRing that the foreman would give him time to do the work ordered before giving the signal for the car to back out.</p> <p>2. -: -: Conflict .of Evidence: Instructions. There is a conflict between the evidence of plaintiff’s and defendant’s witnesses as to whether the foreman’s direction to the plain-, tiff to do the work in the doing of which he was injured was one requiring present action and prompt obedience, or whether the order was so framed as to require obedience only- after other things had been done to make obediencb safe. The defendant had a right to have an instruction upon this last theory.</p> <p>3. INSTRUCTIONS: Composite of Evidence. It is perfectly proper for the defendant to present to the jury by an instruction a theory of the cause made up of the testimony of three of his witnesses in the light of the accuracy of the statements of two of them as to part of the testimony and the accuracy of the statement of the third witness as to the remainder.</p> <p>4. -: On all Theories Supported by Evidence. Where the evidence for plaintiff goes to show that he was injured in obeying an order of defendant’s foreman requiring immediate action, and the testimony of two of defendant’s witnesses, putting aside that of a third, is to the effect that the- plaintiff did not receive an order in the words claimed by him, but a totally different order, requiring the doing of work at a different place and of a different nature; then the defendant is entitled to an instruction based upon the testimony of these two witnesses.</p> <p>5. -: Proof of One Theory Precluding Other. This action for damages for personal injuries turns upon the form of an order given to the plaintiff hy defendant’s foreman. There was hut one order given, and it was either in the terms set forth hy plaintiff’s witnesses, or in those stated hy the witnesses for defendant. There is, then, no merit in an objection to an offered instruction of defendant, that it did not state in express terms that the language quoted in the instruction comprised all that was used hy the foreman in giving the order.</p>

<p>1. INSTRUCTIONS: No Evidence to Support: New Trial: Ejecting Passenger. In this action for damages for wrongful ejectment from the defendant’s train, the plaintiff’s evidence tended to show that, soon after he hoarded the train, his ticket to St. Louis was taken up and nothing given him in return; and that long before reaching St. Louis h© was ejected from the train because he refused to produce another ticket or again pay fare. Defendant’s servants testified, that the plaintiff gave them a ticket to Benton, Arkansas, a station much nearer the point of departure than St. Louis, and the auditor “checked his hat” to that station; that the auditor took up that check before they reached Benton; and that, when they found plaintiff still on the train after passing Benton, and found that he was unable or refused either to pay fare or produce a ticket, they ejected him. The jury found for defendant. It is held, that, under this evidence the trial court rightly granted plaintiff a new trial on account of the giving of an instruction which told the jury that if the auditor gave plaintiff a “check,” and when thereafter he demanded this check plaintiff failed to exhibit it, then the auditor had the right to eject plaintiff if he refused to pay his fare. That plaintiff had a “check” at that time is positively disproved by the testimony of both sides.</p>

— Hon. E. W. Hinton, Special Judge. (1) The court should have sustained plaintiff’s hill and set aside and declared null and void the deed in controversy, under all the evidence in the ease.

• Appeal from Cape Girardeau Circuit Court. — Ron. Henry G. Riley, Judge, (1) “The board shall have power to make, all needful rules and regulations for the organization, grading and government in their school district.” R. S. 1899, sec. 9761. (2) The rule in question is reasonable. In re'Rebenack, 62 Mo. App. 8; King v. Jefferson City School Board, 71 Mo. 628; Deskins v. Gose, 85 Mo. 485; State'ex rel. v. Hamilton, 42 Mo.

— Hon. Wm. H. Martin, Judge. Appellant concedes that it has been unable to find a decision of the appellate courts of this State which will determine the issue involved in the case at bar. It concedes, further, the general rule that a life tenant cannot make improvements and claim compensation for same from the reversioner or remainderman.

Louis City Circuit Court. — Now. James E. Withroio, Judge. (1) There was not sufficient evidence to take the case to' the jury in support of plaintiff’s allegation that Euclid avenue at' the place mentioned was a public street and opened by the city to the public for travel. It is within the discretion of the city officials whether or not to open up a public street.

— Son. Samuel Davis, Special Judges (1) It is not right or lawful to compel the appellant, a citizen of Missouri, to pay taxes on the note for $5000 in Alaska. Such property is not subject to taxation in Missouri, unless it has been removed from the State to avoid taxation. R. S. 1899', sec. 9147.

— Him. C. A. Mosmcm, Judge. (1) Respondent has no standing in a court of equity and is not entitled to the relief granted. The evidence shows that he was in possession of all the facts which should have moved him to action, that he has been guilty of laches and was speculating upon the litigation of others. Bispham on Equity, sec. 39: Bliss v. Pritchard, 67 Mo. 187; Smith v. Washington, 11 Mo. App. 525; Hatcher v. Hatcher, 139 Mo. 626.

— Ho». Wm. H. Martin, Special Judge. (1) The conr't erred in sustaining defendant’s motion for a new trial. In no view of the evidence in this case could a verdict for the defendant he sustained, and the ruling of the trial court in granting-defendant a new trial should be reversed for that reason. TIomuth°v. Railroad, 129 Mo. 642; Fitzjohn v. Railroad, 183 Mo. 74; Ordelheide v. Berger Land Co., ■ 208 Mo. 239.