Volume 241 — Missouri Reports

Quo Warranto. (1) It is stated by the respondents in their demurrer that the facts stated in the information constitute a cause of action against the respondents severally, but not jointly with any other respondent. That involves a consideration of the question as to what it is necessary to allege against several .respondents when the charge is that they have conspired to do acts which are unlawful.

— Hon. H. L. McGune, Judge. (1) The law is strongly and intelligently stated in the leading case of Linnehan v. Rollins, 137 Mass. 123. The samé principle is applied in Scott v. Springfield, 81 Mo. App. 312. The power of control is the canse, the liability of the city is the effect. Liability follows control. An interesting case in point is the City of Chicago v. Dermody, 61 111. 431. Joliet v. Harwood, 86 111. 110, is a blasting case.

Appeai from St. Louis City Circuit Court. — Hon. M. G. Reynolds, Judge. (1) The contract of August 16,1904, constituting, as it did, ninety per cent of the value of the assets of Electric Railway Express Company, and having been accepted as payment for that proportion of the capital stock of the company because of its exclusive feature, could not be modified by the board of directors so as to eliminate this feature.

Mandamus. (1) When it is the evident intention of the legislative body to amend tbe existing law in a single matter only, and tbe amendment is incorporated by mistake in a repealed statute, tbe court will bold that tbe amendment adheres to tbe existing law and is valid as to tbe said law.

Louis County Circuit Court. — Eon. J. W. McElhinney, Judge. ! (1) This being’ an appeal from the action of the court in refusing to set aside nonsuits as to the first and third counts of the petition, plaintiffs’-evidence is to be taken as true, defendant’s contradictory evidence as untrue, and every inference of fact made in favor of plaintiffs which can reasonably be drawn from the evidence so considered. Forbes v. Dunnavant, 198 Mo. 193; Mockowik v. Railroad, 196 Mo. 550.

— Hon. Nat M. Shelton, Judge. 1. The court erred in overruling defendant’s demurrer at the close of all the evidence, a. It was admitted hy plaintiff’s counsel on the trial that defendant’s track was inclosed by lawful fences and cattle-guards; there was no evidence tending to prove that the track was used by pedestrians as a public high-' way; or that defendant acquiesced in occasional use of it by pedestrians; the court so found and declared by defendant’s instruction 13,…

Mandamus. (1). Relators have a right to maintain this action. State ex rel. v. IToblitzelle, 85 Mo. 625. (2) • The mayor has a discretion to say who shall be appointed bnt not to say whether a board shall or shall not be appointed.

<p>Appeal from St. Louis City Circuit Court — lion. D. G. Taylor, Judge.</p>

Louis City Circuit Court. — Hon. George H. Shields, Judge. The deed was fraudulent as against plaintiffs, (a) It was fraudulent in fact, under the evidence and without any consideration to the company, (b) If a valid agreement, such as is claimed could be shown by competent evidence, it would be a fraud upon the plaintiffs and other creditors of the corporation, to permit such agreement to be carried out when the corporation was hopelessly insolvent, after the company had…

<p>1. ORDER GRANTING NEW TRIAL: Not Preserved: Appellate Practice. Where the order granting to defendants a new trial is not set out in the. record, the presumption will he indulged, on appeal, in favor of the court’s action, and it will • he upheld if sustainable upon any of the grounds of the motion for a new trial.</p> <p>2 -: Appellate Practice: Sustained by Substantial Evidence. Where under the facts and circumstances in evidence it cannot be said that there was no substantial evidence against tlie finding and decree of the court, the appellate court will not hold that the trial court erred in granting to defendants one new trial, where in their motion therefor they aver that the judgment is contrary to the evidence and • that there is no evidence to support the judgment quieting the title in plaintiff.</p> <p>3. -: -: Judgment on Merits. But where the appellate court has reached the conclusion that the trial court did not err in granting to defendants one new trial, it will not go further and review the case on the merit's and direct the trial court to set aside the order granting a new trial and render judgment for defendants. There is no final judgment after the order granting a new trial was entered, and the appellate court’s duty, on an appeal from that order, is to, review only the court’s action in granting the new trial.</p>

<p>1. INSANITY: Probate Court: Jurisdiction. Probate courts have full jurisdiction to pass upon the sanity of persons brought before them to answer informations charging unsoundness of mind. The Constitution (Sec. 34, Art. 6) expressly authorizes probate courts to appoint guardians and curators for persons of unsound mind, and that power implies the power to pass upon the sanity o.f the person for whom such guardian or curator is to be appointed.</p> <p>2. -: -: -: County. The probate court of the county of the residence of the person alleged to be insane, and not that of the county in which he is being confined in a state hospital as a private patient, is the proper court to conduct the inquiry into the alleged insanity of such person.</p> <p>3. -: -: -: -:-: Process to Another County. And the probate court of the county of such person’s residence has jurisdiction to send its process to the county in which such person is confined and have it served there.</p> <p>4. -: -: -: Process: General Statute: Section 3863. Although the 'statute does not expressly authorize probate courts to send their notices or writs, to other counties to be served upon peisons sought to be declared insane, yet as probate courts are a part of the judicial system oí the State and are empowered by tbe Constitution to pass upon tbe sanity of persons, tbe instrumentalities for invoking tbeir jurisdiction in that class of cases may be prescribed by general law; and that bas been done by Sec. 3863, R. S. 1909, declaring that “all courts shall bave power to issue all writs which may be necessary in tbe exercise of tbeir respective jurisdictions, according to tbe principles and- usages of law.”</p>

— Mon. Alfred Page, Judge. (1) It is not necessary that the information describe any property kept in the house, or allege that the goods, wares, merchandise or other valuable thing kept therein was the subject of larceny. State v. McGuire, 193 Mo. 215; State v. Helms, 179 Mo. 280.

<p>1. INFORMATION: Incorrigible Girl: Individuating Offense. The statute (Sec. 1546, R. S. 1909) designating the character of girls that may be committed to the State Industrial Home does not individuate the offense, and it is therefore necessary that the information set out the facts which constitute the alleged offense. An information charging that the sixteen-year-, old girl “was then and there unlawfully incorrigible to such an extent that she could not be controlled by her parents and guardians, and that her associations were immoral and criminal and bad and vicious” is not sufficient to support a judgment.</p> <p>2. JUDGMENT: Incorrigible Girl: No Finding of Facts. A judgment that fails to show that any trial was had or that defendant was found guilty of any offense covered by the statute is insufficient. A judgment which does not find that the girl was incorrigible, or that her associations were immoral or criminal, or bad or vicious, but simply finds that “she is a fit subject to be committed to the State Industrial Home for Girls,” will not authorize the sheriff to deprive her of her liberty.</p>

<p>1. PRACTICE: Exceptions: Jury: Omission to Swear a Member: Appeal. The omission to swear a member of the jury in a civil case is but matter of exception.</p> <p>2. -:. -: -: -: -: Constitutional Question. There is a conflict in testimony as to whether a member of the jury in a civil case was sworn. Counsel for appellant .was present during all the time in point, and yet saved no exception. He now attempts to raise a constitutional question under the provision regarding- trial by jury. Held, that even if a constitutional question is involved (a matter not discussed), yet, since timely exception was not saved, the Supreme Court cannot decide the point. A constitutional question in order to confer jurisdiction in a given case must not only be raised below, but must be raised at the proper time and kept alive.</p>

Louis City Circuit Court. — Eon. G. C. Hitchcock, Judge. (1) The court erred in refusing to permit defendant to prove acts of unchasity of the prosecutrix prior to the commission of the alleged offense; and erred in confining defendant to proof of her general reputation. State v. Patterson, 88 Mo. 88; State v. Wheeler, 94 Mo. 252; State v. Blize, 111 Mo. 471; State v. Sharp, 132 Mo. 172. Defendant was not confined to the general reputation of the prosecutrix for unchasity.

Louis City Circuit Court.— Hon. M. G. Reynolds, Judge. (1) The fact alleged in the petition of the plaintiff, that the defendant had orally agreed not to plead the Statute of Limitations, and that plaintiff had relied thereon, is sufficient, as matter of estoppel at common law, to prevent the defendant from invoking that statute. Bridges v. Stephens, 132 Mo. 524; Asphalt Co. v. Transit Co., 102 Mo. App. 468; Monroe v. Herrington, 110 Mo.

— Now. J. C. Sheppard, Judge. (1) Harp’s entering onto lot five in section five and clearing the land of underbrush and timber, is occupancy of a character to set in operation the Statute of Limitations. Johns v. McKibben, 156 111. 71; Smith v. Bryan, 44 N. C. 180; Twohig v. Learner, 48 Neb. 247; Lantry v. Parker, 37 Neb. 353; Backus v. Burk, 63 Minn. 272; Menkins v. Overhouse, 22 Mo. 70; Powell v. Davis, 54 Mo. 315; Holliday-Klotz v. Markham, 96 Mo. App. 51.

— Hon. E. W. Hinton, Special Judge. (1) Tlie article complained of does not impute to plaintiff a crime, and, therefore, it is not libelous per se; and, as the petition contains no allegation that any special damages were caused thereby, the article is not libelous in any sense. The petition, therefore, states no cause of action and the court should have taken the case from the jury. Heller v. Pub.

<p>APPEAL: No Abstract: Ignorance of Rules. Filing a full transcript does not satisfy Rules 12 and 13. There must also be an abstract; and the ignorance of the rules is not a sufficient excuse to prevent a dismissal of the appeal.</p>

— Eon. John P. Butter, Judge. (1) The evidence is not sufficient to support the judgment. Evidence to establish a resulting trust must be so clear, strong and convincing as to leave no reasonable doubt in the mind of the chancellor as to the existence of the trust. The evidence does not measure up to that standard.

— Eon. James T. Neville, Judge. (1) On the evidence the judgment should he for the defendants. The evidence is entirely parol and a trust of the character declared upon cannot he so established. The admission of such evidence is in contra-, vention of Statute of Frauds and of sec. 3416, E. S. 1899' — now sec. 2868, E. S. 1909. There is no trust declared in the deeds nor in any other writing’.

<p>Appeal from Jackson Circuit Court. — Eon. J. E. Slover, Judge.</p>

— Hon. J. H. Blover, Judge. (1) The contract of insurance involved in this controversy is a contract under and to be construed and settled in accordance with law of the State of New York. The Missouri statute has nothing to do with the case. London Assurance v. Companhia de Moagens, 167 U. S. 149; Gibson v. Insurance Co., 77 Fed. Rep. 561; Indemnity Co. v.Mfg. Co., 95 Fed. Rep. Ill; Insurance Co. v. Dingley, 100 Fed.

<p>Appeal from Jackson Circuit Court. — Eon. J. E. Slover, Judge.</p>

Louis City Circuit Court. — Hon D. G. Taylor, Judge. (1) The judgment in this cause is irregular and unsupported by the record proper in at least two particulars. The record shows that the second amended petition filed after the case had been tried, contained for the first time, a number of allegations that are not contained in the two preceding petitions.

Mandamus. (1) Under section 3 of article 4 of the Constitution, the Supreme Court has jurisdiction to compel the judges of the circuit court of the city of St. Louis to subdivide said city into senatorial districts under an apportionment made in accordance with section 7 of article 4 of the Constitution, where the circuit judges refuse to perform the dut}7 imposed upon them by section 6 of article 4 of the Constitution.

— Hon. Nat M. Shelton, Judge. (1) A partner is liable for tbe fraud of his co-partner if committed in the name of the partnership and within the apparent scope of the partnership business, although he be entirely ignorant of it, receive no benefit from it and the fruits of the fraud are. appropriated by his copartner to his own use.

Mandamus. (1) The Stamp Act fund provided by section 10229, chapter 91, Revised Statutes 19091, is now a part of the General State Road Fund provided for by article 5 of chapter 121, Revised Statutes 1909, and is to be distributed according to said Act. of 1909, because said Act of 1909 providing for a general State road fund and as to how it shall be apportioned and distributed, being later in time and inconsistent with that portion of the Stamp Act passed in 1907, provided…

Mandamus. (1) The admission of a person to the bar as an attorney at law is a judgment, and confers upon the person admitted valuable property rights, of which he cannot be deprived by. the arbitrary action of either a court or legislature, but only upon a judicial hearing on charges presented, in which he is given an' opportunity to be heard in his own defense. Garland ex parte, 4 Wall. (U. S.) 333; Hefron ex parte, 7 How.

Charles Circuit Court. — Eon. J. B. Barnett, Judge. (1) Defendant’s plea to the jurisdiction of the trial court should have been sustained. The construction placed upon the Missouri statutes by the lower court renders them unconstitutional and void in denying’ to the defendant the equal protection of the laws. County v. Railroad, 118 IT. S. 394; Railroad v. Ellis, 165 IT.

<p>Appeal from Butler Circuit Court — Hon. J. C. Sheppard, Judge.</p>

— Eon. J. C Sheppard, Judge. (1) The county courts have the exclusive control of the management, investment and collections of the school funds of their respective counties. Their powers are fixed and determined by statute. The provisions are found in Secs. 10813 to 10821, R. S. 1909. (2) The provisions in relation to the conditions of the mortgage and manner of foreclosure are prescribed by statute. R. S. 1909, sec. 10817.

Louis City Circuit Court. — Eon. Virgil Rule, Judge. (1) Plaintiff’s petition does not set forth, facts showing that any necessity existed for an easement in the passageway over defendant’s property.

Louis City Circuit Court. — No». G. G. Allen and No». Moses N. Sale, Judges. Held: or provided that it might be held. The Act of 1877 definitely fixed the time for holding the terms of said court upon the second Mondays in February, May, August and November; whereas the order of publication was made returnable to the second Monday in September, 1878.