Volume 238 — Missouri Reports

— lion. J. G. Sheppard, Judge. The record in this case shows that judgment was rendered for the plaintiff on the 28th day of June, 1899, and the record, motion docket, as well as verbal testimony, all show that defendants never filed a motion for a new trial; and that no such motion for a new trial was ever sustained or overruled; and the circuit court was wholly without authority to again try this cause, over the objection of the plaintiff. Stark v. Zehnder, 204 Mo. 449.

Louis Circuit Court .- — Hon. Daniel D. Fisher, Judge. (1) The court erred in granting the defendant a new trial on the ground that the circuit court had no jurisdiction to try the case, because the circuit court had jurisdiction over the subject-matter. The petition states a case belonging to a general class over which the authority of the court extends, and if defendant had a legitimate defense it should have set it up in the answer.

— Hon. Jas. D. Barnett, Judge. The defendant was engaged in interstate commerce. Not only is this presumed by the court, but that fact stands established by the evidence in this case; and this case is thereby brought within the rule announced in State v. Railroad, 212 Mo. 658. The testimony discloses that part of the train was actually engaged in interstate commerce, carrying cars destined for points outside of the State.

<p>1. NEGUIGENCE: Unconstitutional Ordinances: Not in the Case. Where plaintiff alleged defendant was guilty of negligence in running the train in violation of certain city ordinances regulating speed and requiring the bell of the train to be rung, but did not put his case to the jury on either of those specifications of negligence, but stood on another ground alleged, namely, that defendant’s servants failed to exercise ordinary care to stop the train after they saw. his peril, defendant’s defense that the ordinances are unconstitutional and • void, although pleaded, is not in the case, and will not be considered on appeal.</p> <p>2. -: Pedestrain on Railroad Track: Known User: Humanitarian Rule. In the absence of a known user in the public of the railroad track of such sort as would cast the duty on the railroad defendant to look out for persons at the point of injury, then, in order to hold defendant liable under, the humanitarian doctrine for the injury to plaintiff due to his being struck by a train while he was walking on the track, it is necessary for plaintiff to show that he was actually seen by defendant’s' train servants on the track, between the point at which he entered it and the place of injury, in time .to have warned him and averted his injury by the use of ordinary care. /</p> <p>3. -: -: -: Crossing Track. A pedestrian who, in daylight, attempts to cross a much-used and unobstructed track immediately in front of an on-coming train, without looking or listening, and is struck by it, cannot recover, whether or not the place at which he attempted to cross had for a long time been customarily used by the public as a footpath.</p> <p>4. -: Crossing Track: Looking and Listening. A pedestrian in the act of crossing, in daylight, a much-used and unobstructed railroad track — which, is itself a sign of danger— is chargeable with negligence unless he looks and listens for approaching trains before entering upon the track.</p> <p>5. -: -: Evidence: Humanitarian Rule. Where plaintiff testified that he was in the act of crossing the track at the time the train struck him, and had not walked on the track at all, and all the other witnesses were in such a position that they could not see where he entered upon the track or whether or not he atemptéd to walk upon it in front .of the on-coming train, there is no room in the case for the humanitarian rule.</p>

— Ron. Roiuard Gray, Judge. (1) “Judgment or decree of a sister State against nonresident rendered in a suit in which the defendant did not appear and upon whom there was no personal service of process cannot he used as evidence for any purpose outside of the State in which the suit was brought.” 7 Ency. Ev., p. 840.

— How. Jas. T. Neville, Judge. (1) The power of sale in the trust deed must be strictly followed. The power of sale contained in a deed of trust given to secure a debt must be strictly pursued. Schnakewerlc v. Hoberecht, 117 Mo. 22. (2) The title to the lands in question was vested in John Manlove, sheriff.

— Hon. Hugh Dabbs, Judge. (1) The court erred in permitting the plaintiffs, the heirs at law of William David Spence, to testify. The witnesses S. M. Spence and William J. Spence, with the other co-plaintiffs, claimed title to the land in question by the adverse possession of their father and the plaintiffs depended solely upon their evidence to recover.

•Appeal from St. Louis Circuit Court. — Eon. Jas. E. Withrow, Judge. (1) A court of equity will at the instance of one party to a contract, set aside such transaction or contract if it was made upon the misrepresentation or fraud actual or constructive of the other. Steinmeyer v. Siebert, 190 Pa. St. 471; Winter v. Bullock, 6 Ga. 230; Morris v. Budlong, 16 Hun, 570.

— Hon. Charles R. Pence, Special Judge. (1) Plaintiff was entitled to go to the jury under the doctrine of res ipsa loquitur. Roberts v. Mitchell. 21 Ont. App.

— Hon. John G,. Park, Special Judge. (1) The payments, if made, were on the loan account and not on the bond, which was given as personal security required by the statute. (2) Any payments, made were properly credited on the loan account and not on the bond, as the bond, like the mortgage on the real estate, was given as a security for the loan. It was no more evidence of the loan than the mortgage.

Prohibition. (1) Hhe claims of the Independent Powder Company and the Joplin Supply Company are founded upon an account against the Florence Mining Company, a corporation. The indebtedness claimed is not a direct charge against the defendant, Arthur Kennedy. The petition seeks to charge Kennedy on a personal obligation to the company and to the Joplin Supply Company and Independent Powder Company.

Prohibition. XI) The circuit court did not by appeal acquire jurisdiction of the subject-matter of the petition of said McDermott Realty Company and John W. Bellairs. The appeal of said petitioners from the judgment of the county court purported to be taken by virtue of section 10440, Revised Statutes 1909. This section first appeared in the road law in Laws 1874, p. 142, section 39. Prior to that time no appeal would lie in road cases. Aldridge v. Shears, 101 Mo. 400.

Mandamus. (1) The General'Assembly is vested with power to provide for the office of Adjutant-General and to fix the status, compensation and term of the incumbent.

<p>1. PRACTICE: Constitutional Question: Plea in Abatement. A constitutional question may be raised in a plea in abatement as well as in a plea in bar. When such a question is pleaded in the answer as matter in abatement, it must be tried first, and disposed of before the cause is tried on the merits.</p> <p>2. -: -: Appointment of Next Friend: Raised too Late. .Where the clerk appointed a next friend for plaintiff on the day the suit, was filed in vacation, and at the next term the case went to trial, and after all the evidence was in, defendant asked and obtained leave to file an amended answer to conform to the proof, and in that answer for the first time, by its plea in abatement, raised the issue that the statute which authorized the clerk to appoint a next friend for a minor plaintiff was unconstitutional, since that was a judicial matter, the question was raised too late to give the Supreme Court jurisdiction of the appeal on the ground that a constitutional question is involved. The question should have been earlier lodged in the case— either by a special demurrer, or by a special denial in the nature of a plea in abatement in the first answer filed by defendant. The fact that a next friend had been appointed by the clerk was a matter of record, and defendant is presumed to have known that fact before it filed any plea.</p> <p>Held, by GRAVES, J., dissenting, that the constitutional question was timely raised.</p>

Certiorari. In the first trial of this case the circuit court sustained a demurrer to plaintiff’s evidence, bolding that the facts constituted no cause of action. The Supreme Court on appeal reversed this and directed the trial court to proceed to try the case in accordance with this opinion, which the lower court did.

— Hon. James E. Goodrich, Judg'e, (1) Plaintiff liad no right to maintain this suit in the circuit court of Jackson county, Missouri. Under the laws of the State of Kansas suit was required to he brought either in the county where the accident occurred or in the county in which the defendant had its principal office and place of business. The accident did not occur in Jackson county, Missouri, nor did defendant have its principal office and place of business in said county.

Louis Circuit Court. — Ho». J. Hugo Grimm, Judge. (1) Section 10 of article 1 of the Constitution of the United States provides, among other things, that “no State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws,-” and, therefore, neither the State nor the city of St. Louis can impose a tax, either as a license or property tax, on the jute butts in original…

Prohibition. (1) Persons performing labor and doing work upon railroads have a lien thereon on the roadbed, station houses, depots, bridges, rolling stock, real estate, and improvements of such railroad. Sec. 8249, R. S. 1909. (2) Where the remedy by appeal is inadequate or not sufficiently speedy, the writ of prohibition is the proper remedy. State ex rel. v. Denton, 128 Mo. App. 314; State ex rel. v.'Allen, 45 Mo.

Certiorari. (1) It was unlawful to include in the assessment of the shareholders .of the insurance company the shares of stock owned by the insurance company on June 1, 1909, in national banks, in a State bank and in a trust company, the latter two organized under the laws of Missouri and all located in St. Louis, as such shares had already been taxed to the insurance company as the owner thereof and the taxes paid thereon, on behalf of the insurance company, and to include…

— Hon. James E. Goodrich, Judge. Defendants ’ motion for trial before a common law jury should have been sustained, (a) Abandonment is a question of fact for jury. Clark v. Mammerle, 36 Mo. 620; Fine v. Public Schools, 30 Mo. 166; Landes v. Perkins, 12 Mo. 238; Campbell v. City of Kansas, 102 Mo. 34$. (b) The practice code provides for trial by common law jury.

Circuit Court. — Sow. Samuel Davis, Special Judge. (1) Proceedings to charge the abutting property with the cost of street improvements are in invitum. Substantial compliance with the statute is essential to bind the property. All who deal with these matters must see that there is no substantial departure from legal requirements. Rose v. Trestrail, 62 Mo. App. 352; Carroll v. City of St. Louis, 4 Mo. App. 192; West v. Porter, 89 Mo. App. 153.

— Hon. W. N. Evans, Judge. (1) The information is bad under either Sec. 4481 or 4482, R. S. 190-9', for the reason that it fails to charge that the assault was done with felonious intent. An intent to kill must be charged under either of those sections. State v. Clayton, 100- Mo. 516; State v. Norman, .136 Mo. 1. (2) Insufficiency of the information may be raised for the first time on appeal. State v. Stowe, 132 Mo. 199; State v. Hall, 130 Mo.

Francois Circuit Court. — Eon. Peter E. Euek, Judge. There are only three rulings on evidence worthy of notice. The prosecuting attorney ashed the wife of appellant, upon cross-examination, where appellant was at the time deceased wanted her to go in the bach room with him and settle the account owed him by her husband. Her answer was that her husband was in Kansas.

— Eon. Wm. E. Martin, Special Judge. (1) In the case at bar the declaration of trust was signed by the Bates County Investment Company, by F. J. Tygard, he being its duly authorized officer. It is a valid declaration binding upon the investment company, and under the evidence it is clearly shown that the investment company held the legal title in trust under the agreements previously made between Patterson and Tygard.

<p>Appeal from Grundy Circuit Court. — Ho». G. W. Wanamaker, Judge.</p>

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) Tlxe appellants are entitled to have the judgment herein set aside, because the respondent did not prove any actual compensatory damages, and, therefore, the court below erred in allowing the jury to find exemplary damages; for nominal damages will not support exemplary damages. Hoagland v. Forest Park Am.

— Eon. Eenry G. Riley, Judge. Where the record owner is sued for taxes on the land and judgment is rendered against him and after this judgment is rendered a deed is filed for record from the judgment defendant to a third party and after this deed is filed for record the land is sold under .the judgment, the purchaser at the sale for taxes is the owner of the land or acquires the title to it, although such deed was made before the suit for taxes was filed.

— Now. Chas. D. Stewart, Judge, (1) The indictment offered in evidence on the hearing of the motion to quash, was for the same offense as that charged in the information, although the punishment under the indictment may have been different from that under the information. The punishment, however, might have been the same under the indictment (Sec. 4478), as under the information (Sec. 4472).

— Hon. David II. Eby, Judge. In tire language of this court, in tire case of Cox v. Jones, 229 Mo.' 1. e. 62, the rules laid down for the construction of the will in that ease as far as applicable to this may be summarized as follows: (a) The best interpreter of a will is the will itself.

St. Louis Circuit Court. — Hon. Moses N. Sale, Judge. (1) (a) The sole question involved is plaintiffs’ present rigid to the injunction against defendant.

<p>1. LIBEL: Telegraph Operator: Text-Book Commission: No Proof. It is the legal duty of a telegraph operator to send a. message deposited with him, upon payment or tender of charges, if it is expressed in decent language and is not manifestly libelous; and where there is no proof that the agent knew that the County Text-Book Commission was in session for the purpose of receiving bids and adopting a series of text-books for use in the schools of the county, on the day that the agent of a certain publishing house deposited with him a message to his house reciting “board here sold out,” or that said agent was the representative of a competing bidder, or that said agent had appeared before said commission, or that the word “board” meant said commission, or that said words meant to charge that the members of the commission had been bribed, a member of said board fails to make out a case of libel against the telegraph company.</p> <p>2. -: -: Manifestly Libelous: Ambiguity. The statutes do not compel a telegraph operator to send a message that is manifestly libelous; but unless it is manifestly libelous or indecent in its expressions, he must send it. But any doubt or ambiguity as to its libelous character is to be resolved in favor of the operator when he and his company are sued for libel; and if the message deposited with him, unexplained and disconnected from extrinsic facts, of which he is not shown to have any knowledge, has in it no language to suggest a libelous meaning, the plaintiff cannot recover.</p>

— Eon. Joseph J. Williams, Judge. (1) The court erred in submitting’ to the jury the issue of the former conviction, with the issue of the guilt or innocence of the defendant. They both should have been tried separately, and the jury should have been instructed as to each issue separately. 12 Cyc. 952.

— Hon. Alfred Page, Judge. (1) The court erred in permitting the witness to testify about Mrs. Zimmerman being at Sager’s house at dates long prior to the date of the homicide, and of Zimmerman having been there on occasions long prior to the homicide, and as to Zimmerman sitting on lumber pile, etc. This evidence was too remote, was immaterial to the real issues, and was highly prejudicial to the defendant.

. Appeal from Gentry Circuit Court. — Eon. William C. Ellison, Judge. The principal error relied upon is the fact that the Three-Fourth Jury Law does not. apply to a case of information against a party for violation of the city ordinances.

— Hon; Francis H. Trimble, Judge. (1) This court will review the finding of facts by the trial court in an equity proceeding. Brown v. Pickle, 135 Mo. 405; Penne v. Schnecko, 100 Mo. 250; McElroy v. Maxwell, 101 Mo. 295; Hamilton v. Armstrong, 120 Mo. 597. (2) The burden of proof is on the plaintiffs to prove their case as alleged in their petition. Brown v. Pickle, 135 Mo. 405. And by a preponderance of the evidence.

Louis City Circuit Court. — Eon. George E. Shields, Judge. (1) The court gravely erred in permitting the State to give evidence of several different and distinct offenses committed by the alleged principal Percy Everson on the day named.

<p>1. ORIGINAL PROCEEDINGS: Commissioner to Take Evidence: Rulings on Evidence: Interlocutory Decision. As a rule of practice, where a commissioner has been appointed to take evidence in an original proceeding brought in the Supreme Court, the court will not consider his certification of rulings on interlocutory matters arising during the hearing, but will wait until he makes his final report thereon. Where he rules that certain evidence offered is not competent, and other evidence is competent, the court will not, upon his certification for a ruling as to the competency of said evidence, decide the case by piecemeal by giving a decision on the points for his guidance in the further taking of testimony,, but will leave him free to rule according to his own judicial judgment, and will reserve its decision on the points until the cause is finally submitted. But the court will consider his application far enough to clarify and elucidate the original order given him where it has been misconceived by him and counsel — for instance, where the bare order without explanation is broader than some of the previous decisions of this court.</p> <p>2. ELECTION CONTEST: Poll Books and Ballots as Evidence: Prima Facie Case of Fraud. It is not necessary that the parly charging fraud or illegality in an election must show a prima facie case of fraud before he can have the poll books and ballots as one step towards proving the fraud charged. Wherever there is an allegation of fraud in an election contest, made in good faith, the ballots and poll books should be opened for the purpose of showing fraud, whether it is actual fraud or what may be denominated legal fraud. [Overruling State ex rel. v. Spencer, 164 Mo. 1. c. 33; Montgomery v. Dormer, 181 Mo. 5.1</p> <p>Held, by VALLIANT, 'C. J., that this court has never decided that the secrecy which the Constitution requires can be invoked to cover up or protect a ballot that has been cast by a man who had no lawful right to vote, and hence the Spencer and Dormer cases should not be overruled.</p> <p>Held,, also, that the court should decide now whether certain persons whose names are on the registration books, which fail to show that such persons had been naturalized or the court wherein naturalized, were legal voters, and whether or not the testimony of the voter is sufficient to contradict his ballot.</p> <p>3. -: Fraud: Competency of Evidence: Testimony of How Witness Voted: Secrecy of Ballot. The provision of the Constitution in reference to a secret ballot ■ was not designed to be a bulwark behind which fraud could lurk and propagate Where fraud in the election is alleged in good faith in the election contest, the mode and measure of proof should be as broad as the charges, and any available evidence tending to establish or disprove the charge is competent. Not only are the ballots and poll books competent, but a witness may- testify as to how he voted, as tending to show fraud or no fraud. But whether the unsupported testimony of the witness will set aside the face of the ballot, if it contradicts the ballot, is not decided, but, in the present status of the ease, is reserved.</p> <p>4. -: Comparing Ballot with Poll Book. When the ballot is examined and shows a certain number, the party challenging it as fraudulent is entitled to the poll book to show by the corresponding number thereon who cast it. The statute (Sec. 5911, R. S. 1909) so provides, and the Constitution does not inhibit. [Overruling State ex rel. v. Spencer, 164 Mo. 1. c. 23.]</p> <p>5. -: Comparison with Registration Book and Other Documents. Where fraud is alleged in good faith in the election contest ease, the registration books and other papers and documents required by law to be made and preserved in those counties where registration of voters is required, are available, along with the poll books and ballots, to establish or disprove the fraud. [Per WOODSON, J., with whom a majority concur.]</p>

— Hon. Charles A. Killian, Judge. The necessary recitals of sheriffs’ deeds are: First, names of the parties to the execution; second, the date when issued; third, the date of the judgment, order or decree, and other particulars as recited in the execution; and, fourth, description of the property, the time, place, and manner of the sale. R. S. 1909, sec. 2231.

<p>Appeal from Bollinger Circuit Court.—Eon. Charles A. Killian,- Judge.</p>

<p>1. APPELLATE JURISDICTION: Constitutional Question. Raising a constitutional question is not a mere matter of form. The question must really exist, and if it does not in fact exist it is not raised. If a determination of every issue raised by the pleadings and evidence does not involve a consideration of any clause of the Constitution, although the defendant assigns in ■his motion for a new trial that to permit the judgment for one hundred dollars against him to stand would be to deprive him of his property without due process of law,, the Supreme Court had no jurisdiction of the appeal.</p> <p>2. -: -: Jurisdiction of Justice of Peace: Equity: Suit to Compel Stockholder to Pay for Stock. A suit by a corporation to compel a stockholder to pay the balance due on his subscription to the stock of a corporation held by him, is not a suit in equity, but an action at law, and the amount sued for being only one hundred dollars the proper justice of the peace has jurisdiction to try the case. But even if it were a suit in equity, and the circuit court, upon an appeal to it and a trial de novo, should hold it to be an action at law, the holding would only be an error of law, and the result an erroneous judgment, which could be corrected on appeal to the proper appellate court, and would in no sense be to deprive the defendant of his property without due process of law.</p> <p>3. -:-: Suit to Compel Stockholder to Pay for Stock: Held as Security for Debt. Where the defense to the suit for one hundred dollars claimed to be due from defendant for unpaid stock of a corporation held by him, is that he held the stock only as security for a debt, an adverse holding by the trial court amounts either to a finding that he did not believe the-witnesses on this point or did not consider the fact sufficient to constitute a defense, and if either holding was a mistaken one it was simply error, and involved no constitutional point.</p> <p>4. -: -: -Where Corporation was a Bankrupt. Where the plaintiff corporation, which sued a stockholder for an unpaid subscription for stock held by him, had previously been adjudged bankrupt, and its affairs had been administered by a trustee until all its debts had been paid and a small amount returned to the secretary, a holding by the trial court that the corporation was not,, for those reasons, precluded from suing the delinquent stockholders for the several amounts due on their stocks, involved no cohstitutional question. If the holding was wrong, it was only error.</p>

—Hon. Henry C. Riley, Judge. (1) The court erred in overruling defendant’s ■objection to the introduction of any evidence under the petition. The petition does not state facts sufficient to constitute a cause of action. Section 1075, which is a penal statute, applies only to the crossing or intersection of the lines of two railroad companies, not to the crossing or intersection of two lines of one railroad company.

<p>1. PLATTING CITY PROPERTY: Vesting Title to Street: Plat to be Construed as a Whole. Under the statute (See. 10294, R. S. 1909) a recorded plat of a plot of ground within a city, has the effect to vest title to a street thereon in the city, the same as if it had been dedicated by deed. But a -plat, like a deed, must be construed as a whole. Parties claiming under a deed can take only what the deed in fact conveys; not what it may be surmised the grantor intended to convey. The plat is not to be taken to pieces. It is to be taken as a whole.</p> <p>2. -: -: -: Rights of City and Subsequent Purchasers. The rights of the city and of individuals, in so far as they áre derived from the plat, date from its filing; a purchaser of a lot after the plat is filed acquires a right to the streets and alleys in so far as they affect his property.</p> <p>3. -: -: -: Including Street Not Owned: Contribution from Lots. Where the owner of land platted it by lots, and made the lots include all the land she owned, and in addition made it include a twenty-foot strip she did not own as a street and the plat was approved and accepted by the city, and recorded, and lots were sold with reference thereto, the court cannot adjust the matter by reforming the plat to the extent of taking the twenty-foot strip from the lots of the purchasers. The owner had no right to dedicate the twenty-foot strip she did not own; she did-have a right to sell the lots she owned, as shown on the plat. If the city approves and accepts the plat, and lots are sold on the faith of it, the city’s right to what the plat gives is not superior in quality or prior in time to the rights of purchasers. In such case the dedication of the twenty-foot strip as a street fails, even though the owner of the lots supposed she owned the strip and was attempting to dedicate it as a street. And the court cannot - compel the purchasers of the lots to surrender twenty feet off of their lots to be used as a street.</p> <p>4. -: Monuments: Subdivision Line of Sections. A subdivision line in the center of a section is not a monument. It is not visible, and is ascertained only by measurement. A description in a plat calling for it as a boundary line does not take precedence over distances.</p> <p>5. -: -: .Center of Unextended Street. Nor is the center of the extension of a street called for as a boundary line of the land described in the plat, a fixed monument, and the rule of law does not require a description by distances to yield to it. But a street already constructed along the property, whose line is used as a starting point, is a fixed monument.</p>

<p>1. PROMISSORY NOTE: Made in Kansas: Limitations. Where the note sued on was a contract made in Kansas, to be paid in Kansas, and the transactions relied on by the plaintiff holder to take the note out of the operation of the Kansas five-year Statute of Limitations occurred in Kansas, the legal effect of those transactions must be adjudged by the laws of Kansas.</p> <p>2. -: -: -: Part Payment: Effect as to Joint' Non-resident Maker. By the law of Kansas a part-payment by one of the joint makers of a note does not arrest the course of the Statute of Limitations as to the other. A partial payment by one of the joint makers, living in Kansas, without an acknowledgment or' promise in writing of the other residing in Missouri, made after the statute had already run for five years after the last payment, has no effect upon the rights of the maker residing in Missouri, and does not save the bar of limitations as against him. So that where the note made in Kansas, matured March 1, 1889, and the joint maker residing in Kansas made a payment of $5 on February 27, 1894, and on December 16, 1899, another of $42, the last partial payment did not save the note from the bar of the five-year Statute of Limitations as to the other joint maker residing in Missouri.</p> <p>■3. -: -: -Absence from State: Suspension of Statute. Since a partial payment by one joint maker of a Kansas note did not have the effect of stopping the running of the Kansas Statute of Limitations as to the other, the absence of such other from Kansas and his continued residence in Missouri for seventeen years after the note matured and before suit was brought,, did not have the effect of saving the suit from being barred by the Missouri Statute of Limitations, which began to run in his favor as soon as the note became due. Therefore, the Kansas statute, declaring that the Statute of Limitations does not run in favor of a defendant while he is absent from the State, does not apply.</p>

—Eon-. E. E. Porterfield, Judge. The abstract of tbe record does not comply with the rules of this court in that it does not set out separately the bill of exceptions and the record proper. The two are so mixed together and confused that no one can tell where the bill of exceptions begins and the record proper ends. In fact, neither begins nor ends at any particular place, but they are both mixed together. Stark v. Zehnder, 204 Mo. 449; Thompson v. Ruddick, 213» Mo. 564.

<p>1. PLEADING: Conclusions of Law: Heirs at Law and Next of Kin. An allegation in the petition in a will contest that plaintiffs are “heirs 'at law” of the testator is a legal conclusion, but that they are “next of kin” to him is not. Both together are such a statement of an issuable fact as is not vulnerable to attack by a general demurrer.</p> <p>2. WILL: Creating Public Cemetery or Private Burying Ground. The testator’s will said that his purpose was to so dispose of his estate “as will most benefit my large circle of relatives and friends,” and then gave his real and personal estate to certain trustees, who were to “set apart such of my real estate as in -.their judgment may be necessary,, including the old family burial ground where my father and mother and many of their descendants and relatives are buried, for cemetery purposes . . . and to use the net income, rents and profits arising from my said estate for the purpose of improving, decorating, adorning and enlarging said cemetery grounds,” and then recited that “in making this disposition of my property I believe I put it to better use than to have it distributed in small parcels to my heirs at law.” Held, that the will did not contemplate only the private burying ground in which his father and mother and their many descendants and relatives were buried, -which he did not own, but contemplated such other parts of his “real estate” as was needed for the establishment of a cemetery in which to bury his “large circle of relatives and friends,” and therefore a public cemetery.</p> <p>3. -: -: Codicil. Nor did the fact that the testator in the will directed the trustees to form themselves into a corporation, and in the codicil revoked that requirement, make the cemetery created by the will any the less a public cemetery.</p> <p>4. -: -: Corporation. It is not necessary under the laws of this State for the establishment of a public cemetery that a corporation be formed to hold title and manage it (Secs. 1302,, 1310, 1311, R. S. 1909), although that course is expressly authorized'by statute (Sec. 3435, R. S. 1909).</p> <p>5. -: Devise of Land for Public Cemetery: Perpetuity. The rule against perpetuities is designed to forbid the creation of a future estate, that will not vest within the lifetime of a person in being and twenty-one years and ten months thereafter. A will which vests real estate in trustees for the establishment of a public cemetery, to take effect immediately on the testator’s death, does not establish a perpetuity, although it invests the estate in them and their successors in trust forever.</p> <p>6. -: -: Statute: Dedication: Condemnation. Be-' sides, the statute (Sec. 1303, R. S. 1909) expressly authorizes the dedication of land to the purpose of a public cemetery, and 'even the condemnation of land for the enlargement of a cemetery (Sec. 1310).</p> <p>7. --: -: Public Charity. A public cemetery is a public charity; and is classed as such both in the Constitution and the statutes.</p>

Louis City Circuit Court—Row. Geo. R. Shields, Judge. (1) The judgment in the case against the F. H. Smith Lumber Company was obtained without a hearing of the only party entitled to be heard, and is, therefore, void. Keele v. Keele, 118 Mo. App. 262; Windsor v. McVeigh, 93 U. S. 274; Hovey v. Elliott, 145 N. Y. 126; S. C., 167 U. S. 409, 42 L.°Ed. 215; Pennoyer v. Neff, 95 U. S. 673, 24 L. Ed. 565; Dartmouth College Case, 17.U. S. 581.

Louis City Circuit Court .—Hon. Daniel G. Taylor, Judge. (1) The petition fails to state a cause of action and defendants’ objection to the introduction of any testimony should have been sustained. Merry v. Fremon, 44 Mo. 521; Wilkinson v. Goodin, 71 Mo. App. 397; Rinehart v. Long, 95 Mo. 396; Humphreys v. Milling Co., 98. Mo. 542; Implement Co. v. Jones, 143 Mo. 278; Burnham v. Boyd, 167 Mo. 185; Davidson v. Dockery, 179 Mo. 693.

—Hon. David H. Eby, Judge. (1) The court permitted, over the objections of plaintiffs, incompetent and illegal evidence, especially as to the admission of evidence of J. E. Thompson, lawyer, who wrote the deed in question for deceased. R. S'. 1909, sec. 6362; State v. Dawson, 90 Mo. 149; 1 Greenleaf on Evidence, sec. 240; Henry v. Buddicks, 81 Mo. App. 360'; Ingerham v. Weatherman, 79 Mo. App. 480; Sweet v. Owens, 109 Mo. 1.

Prohibition. By an examination of the petition, it will he seen that the plaintiffs in the injunction suit claim to he the owners and entitled to certain timber now standing on a large tract of land situated in Osage county, this State, and that they have the right to enter upon said land and cut and remove the timber thereform, and further claim that the relators are interfering with their. right to enter' upon said land and cut and remove said timber.