Volume 242 — Missouri Reports

— Eon. R. 8. Ryors, Judge. (1) A will is a muniment of title only if duly pro-' bated; and tbe probate of a will is a judicial act, which can be shown only by the record of the court. Creasy v. Alverson, 43 Mo. 13; Smith v. Estes, 72 Mo. 310; Sniffer v. Howerton, 124 Mo. 637; Stowe v. Stowe, 140 Mo. 594; Cohen v. Herbert, 205 Mo. 537.

— Eon. Louis Hoffman, Judge. (1) Notwithstanding this action was brought on a contract alleged to have been made by plaintiff with defendant railway company and the firm of Graham & Miller, and the evidence fails to prove that both said defendants were parties to the contract, the plaintiff may recover against the railway company, if the evidence shows that it alone was a party to such contract.

Louis City Circuit Court. — lion. Moses ff. Sale, Judge. Held: viz., as a “ guaranty that all claims of policy holders shall be duly paid.” Sec. 8086, R. S. 1899. (9) The securities, of the cash fund, held by the garnishee, are not in the custody of the law in the sense that they are not subject to garnishment. Sec. 8086, R. S. 1899.

— Hon. H. M. Ramey, Judge. (1) Plaintiff’s petition is grounded, and his cause of action founded, upon a liability of the defendant to plaintiff upon the revivor judgments and not upon the original judgments. At the time the revivor judgment was taken plaintiff had no legal right to obtain such revivor in his own name, and the judgments so taken were null and void. Goddard v. Delaney, 181 Mo. 564; Bick v. Tanzey, 181 Mo. 515; Bick v. Bobbins, 131 Mo. App. 673.

— Hon. C. A. Mosman, Judge. (1) John D. Noble took a fee to tbe nineteen acres in question for tbe reason that tbe title of said premises stood of record in Hania Lamar and William T. Lamar, ber husband.

— Eon. E. M. Barney, Judge. (1) The court erred in overruling the defendant’s objection to the introduction of any evidence on the part of the plaintiff, made before any evidence was introduced, on the ground that there was no equity in the petition, that no cause of action was stated in the petition. Mulholland v. Rapp, 50 Mo. 42. (2) Negligence amounting to a breach of duty supplies the place of intent.

<p>1. JOINT TORTFEASORS: Nonsuit as to One: Motion by Other to Set Aside. Where the owner of the property, the lessee in possession and the city have been joined as defendants, in a suit for damages to a pedestrian on the sidewalk, and, after demurrers to the evidence offered by the property-owner and the lessee have been sustained, the plaintiff has taken a non-suit with leave as to them, the city, though a joint tortfeasor, has the right to move to have the nonsuit set aside as to the lessee or other codefendant, and that right it has under the statute (Sec. 9801, R. S. 1909) though the plaintiff filed no motion to set aside the nonsuit.</p> <p>2. SIDEWALK: Possession of Premises: Liability. Where the abutting property is leased and has been for twenty years, yet is in the actual occupancy of a subtenant) it is the subtenant and not the lessee, if either, that is liable for damages for injury to a pedestrian due to a defective sidewalk. In such case the lessee is in constructive possession only, and not ' actual possession, and the liability attaches to the one whose duty it is to keep the premises in order, and that duty devolves upon him who is in actual occupancy with immediate control of the premises.</p> <p>8. -: -: Liability of City. Although the lessee of the abutting premises may not be liable for injuries to a pedestrian due to a defective covering of a coal chute in the sidewalk, because not in actual possession of the premises', and a demurrer may properly be sustained as to it on that ground, yet the city may be liable, and a nonsuit as to the lessee, though properly upheld on that ground, does not relieve the city of its liability.</p>

Louis City Circuit Court. — Hon. Robert M. Foster and Hon. George H. Williams, Judges. . Ordinances numbered 20729 and 21162 are void in that they are not in conformity with tbe city charter, and the final judgment founded on said ordinances is also void for the reasons that: (1) Said ordinances attempt to establish several building lines in West Pine boulevard, although the .charter, section 1, article 6, authorizes but one such building line.

Louis City Circuit Court. — Eon. C. G. Allen, Judge. (1) The finding and judgment should have been for defendants. 1st. Because there was no negligence on the part of any one proven in this case which caused, or contributed to cause, the plaintiff to be injured.

Louis City Circuit Court. — Hon. Daniel O. Taylor, Judge. (1) The court ruled that the competency of plaintiff to testify was a question of fact for the jury and to be inquired into on cross-examination of him after he stated the facts of his injury to the jury. This was error. State v. Brown, 209 Mo. 418; State v. Doyle, 107 Mo. 36.

Louis City Circuit Court. — Hon. Virgil Buie, Judge. The court erred in refusing to direct a verdict in favor of defendant: (a) Because the plaintiff was injured solely through his own negligence in suddenly stepping from a position of safety in front of the moving engine and tender. Lennon v. Railroad, 198 Mo. 514; Giardina v. Railroad, 185 Mo. 330.

Louis City Circuit Court. — Hon, G. C. Hitchcock, Judge. (1) An action for money .had and received, lies when one person has received money belonging to another, which, in justice and right, should be returned. Eicbardson v. Drug Co., 92 Mo. App. 515; Gaines v. Miller, 111 U. S. 395. (2) On December'22, 1905, Tygard was a defaulter in his trust as treasurer of the Masonic Home, in the sum of $19,329.14. He was insolvent.

— Hon. F. G. Johnson, Judge. (1) An attack upon a will on tlie ground that it was procured by undue influence necessarily assumes the existence of a will otherwise valid and regularly executed. Upon this issue therefore, the burden of proof is on the contestants. Jones v. Roberts, 37 Mo.

<p>JUDGMENTS: of Probate Court: Setting Aside in Equity: Fraud. The judgment of a probate court having jurisdiction of the subject-matter and of the parties is just as conclusive as one rendered by a court of general jurisdiction, and it will not be set aside in equity because it was rendered upon a fraudulent cause of action or any other matter to which full defense might have been interposed on the trial, unless such defense was prevented by the fraud of the party who recovered the judgment. In order to annul such a judgment, it must be shown that fraud was practiced in its procurement, or that the court was misled by some artifice, trick or imposition to which the party who obtained the judgment was a privy. In all other cases it can be corrected only by appeal, writ of error, or other apt proceeding in the cause wherein it was rendered.</p>

— Eon. J. G. Sheppard, Judge. (1) The switchmen in failing to give any warning to Allen, who was about to pass between uncoupled freight cars on the repair track, and the engineer, who - was in plain view of the torches of Allen and Sheets, in backing up the engine without any ringing of the bell or sounding of the whistle or other warning, were guilty of gross negligence. 4 Thompson on Negligence, sec. 4489, p. 552; Black v. Railroad, 172 Mo. 177; Penney v. Stock Yards Co.,…

— Son. W. N. Evans, Judge. Appellant appeals from the nunc pro tunc judgment. This court, in its former decision, State v. Kile, 231 Mo. 59, directed the trial court to enter judgment of sentence upon the verdict in regular form. Instead of obeying the order of the court, the trial court, as shown by the record, made a nunc pro tunc order of the judgment of sentence.

Louis City Circuit Court.— Hon. W~ M. Kinsey, Judge. (1) The evidence admitted as to the value of the services of the staff work was incompetent. Books of account are admissible only' when they contain' original entries made in the due course of business at or near the time the transaction took place. Aggregates entered at a considerably later time than at which the transaction took place are inadmissible. Milling Co. v. Walsh, 108 Mo. 277; Drug Co. v. Grady, 57 Mo.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) Plaintiff was entitled to a trial by jury of her suit for dower in the personal property owned by her deceased husband at the time of his death. Sec. 2937, R. S. 1899; Shipp v. Snyder, 121 Mo. 155; sec. 372, R. S. 1909.

— Hon. Nat. M. Shelton, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence. It was admitted by plaintiff that she and her husband both knew the train was rapidly approaching them, was very near, and that they “would have to get out of the way some way.” With full knowledge of their perilous position they ran a race with death.

Louis City Circuit Court. — Hon. Jesse McDonald, Judge. (1) The charter lien of taxbill has no priority over the liens of the two deeds of trust. Everett v. Marston, 186 Mo. 587; Jaicks v. Silliman, 128 Mo. 183; St. Louis v. Clemens, 36 Mo. 394; Anderson v. Holland, 40 Mo. 373; Clemens v. Knox, 31 Mo. 197; Trust Co. v. Niggeman, 119 Mo. App. 62; 25 Cyc. 662, 678; 27 Cyc. 1176; 25 Am. and Eng. Ency.

— Hon. David H. Harris, Judge. (1) The trial court erred in- refusing to permit the attorneys for the defendant to fully cross-examine, the witnesses Noble Peacher and Eollie D. Kivett, the accomplices who testified for the State, and on whose testimony the State relied for a conviction. Wharton, Crim. Evidence (9 Ed.), sec. 444; Eapalje, Evidence, p. 416, sec. 252. (2) The court erred in giving instruction 2, on -the part of the State.

— Hon. L. J. Eastin, Judge. (1) All enactments of the Legislature are presumed to he constitutional until the contrary is made clearly to appear. For this reason the burden rests upon the respondent to point out and make clear to this court that said act is violative of the Constitution. State ex rel. v. Williams, 232 Mo. 2- State ex reí v. Mason, 150 Mo. 49; State ex rel. v. Switzler, 143 Mo. 317.

<p>PLEADING: Demurrer: Failure to File Bond Sued On: Probate Judge. The failure of the county to file with its petition the official bond of the probate judge sued on or to file a copy of such bond with the petition, in a suit to compel the probate judge to pay into the county treasury the fees collected by him in excess- of the amount of the salary of the circuit Judge, cannot be raised by a demurrer 'to the petition.</p>

— Hon. John M. Williams, Judge. () The'decree and the deed pursuant thereto in the suit of the Board of Trust against Board of Trustees of Westminster College, October term of circuit court, does not affect the rights of these respondents, they being neither parties to the record, nor privies. Sampson v. Mitchell, 125 Mo. 229; Barton v. Walker, 165 Mo. 32; Grimes v. Miller, 221 Mo. 643; Freeman on Judgments (4 Ed.), sec. 154.

— Hon. B. G. Thurman, Judge. (1) Said Act of 1911 is in conflict with section 1 of article 14 of the amendments to the Constitution of the United States, in this: That it denies to defendant the equal protection of the laws, and attempts to deprive it of its property without due process of law.

<p>Appeal from Vernon Circuit Court. — Hon. B. G. Thurman, Judge.</p>

<p>1. APPEAL: Exceptions: Filing Proof of Publication. Where the bill of exceptions shows that proof of publication was filed in a former tax suit, even though the trial court in this case in its declarations of law said “though not appearing to be filed,” contention that it was not filed comes too late upon appeal.</p> <p>2. JUDGMENTS: Presumptions: Record. No presumptions in support of a judgment are to be allowed in opposition to any statement contained in the record. If it appears that process was served in a particular mode, no other and different service can he presumed.</p> <p>3. -: -: -: Publication by Wrong Name: “W.” and “Win.” Where proof of publication has been filed in a tax suit it constitutes a part of the record, and where it shows that the publication was against “W. N. Woodruff” there is no presumption that there was at any time proper publication, that is, against “William N. Woodruff,” and the publication is void.</p> <p>4. -: -: -: Title of Officer not Affixea to Ar fidavit. The failure of an officer to affix the .title of his office to an affidavit taken before him and spread of record i$ a tax suit, would tend to impeach the jurisdiction and not to support it.</p>

— Hon. W. S. G. Walker, Judge. At the close of all the testimony, the defendant offered five instructions and all were refused, and all are lost, or misplaced, except the first, asking the court to instruct on* all of the law of the case. It was the duty of the court to so instruct whether requested to do so by the defendant or not.

<p>1. WILLS: Creation of Power. A testator gave his wife a life estate, with remainders to three children, the will continuing, after provisions fixing various amounts and times of division for the shares of these children, “and if Lydia [one of the children] should marry before the death of my said wife, then it shall be at the discretion of my said wife how much my said wife shall give her.” Lydia married before the death of the testator’s wife. Held, that the will gave the wife a power to fix and set off to Lydia the amount she should have.</p> <p>2. -: Absolute Estate: Subsequent Clause. An absolute estate created by one clause of a will cannot be cut down by a subsequent clause, unless the language used is as clear and decisive as that of the clause creating the same.</p> <p>3. -: Effect of Subsequent Clause on Estate Granted: Estate in Remainder: Estate in Possession. A’s will gave an estate for life to B, his wife, with remainders to C, D and E, his children, and provided further, (a) that if C, D,, or E should die before reaching twenty-one, the property should descend to the other two; (b) if both of the boys, C and D, should marry leaving E, the daughter, single, then E and the last boy to marry should make an equal division after, the first one had his third, leaving E the homestead; (c) if E marry after the death of the testator’s wife, and after the boys reach twenty-one, she should have $1000 in valuation of the property; and (d) if E should marry before the death of the testator’s wife, “then it shall be at the discretion of my .said wife how much my said wife will give her.” Held, that E’s estate is not cut down by the final clause. The estate which the widow is empowered to assign her in case of marriage is of a higher character than what was previously provided. The first clause gives her a remainder in fee, the clause containing the power authorizes an appointment in fee simple in possession.</p> <p>4. -: Powers: Execution. A’s will provided that if E should marry before the death of testator’s wife, who was given a life estate in the property, then it should be at the discretion of the wife how much she would give to E. E married before the widow died. Afterwards the widow, together with all others interested therein, deeded to E a part of the estate lands, hy a deed which provided that it should he a receipt for all claims of E against the estate, hut which contained no reference to the power. E has kept the deed ever since, and she took possession of the land and finally sold it. Held, that the deed was an effective execution of the power, and that it divested E of all interest in the estate.</p>

— Hon. Ralph 8. Latshaw, Judge. (1) No instructions appear in the bill of exceptions as having- been asked and refused. There is no demurrer to the evidence in the bill. .(2) Appellant complains in his motion for a new trial for error committed by the court in the admission and exclusion of evidence, but nowhere can we find that he saved a single exception to any of the court’s rules tbereon.

Louis City Circuit Court. — Now. W. A. Taylor, Judge. (1) Plea in abatement should have been sustained, as tbe methods of the jury commission of the city of St. Louis are'beyond the powers entrusted to him by the statutes.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. (1) The indictment should have been quashed as uncertain, vague and indefinite and because of duplicity in charging two separate and distinct offenses. State v. Lee, 228 Mo. 499; State v. Chauvin, 231 Mo. 40; State v. Carragin, 210 Mo. 270; State v. Huffman, 136 Mo. 58; State v. Clevenger, 20 Mo. App. 628; State v. Bach, 25 Mo.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The respondent is not legally entitled to engage in the sale of intoxicating liquors, and its officers, members or agents in doing so are guilty of the continuous commission of criminal acts. State ex rel. v. Club, 125 Mo. 308; State v. Tindall, 40 Mo. App. 271; Black, “Intoxicating Liquors,” secs. 142, 528; Woolen and Thornton “The Law of Intoxicating Liquors,” sec. 798.

— Hon. Ralph S. Latshaw, Judge. (1) The identity of the defendant as the person who committed the crime, barring the testimony of John Shoemaker, was wholly circumstantial, and the chain is not complete. The morning of Jan. 11, 1911, at 3:15 a. m., was cloudy, and the moon set at 3:50 a. m. Could a witness be more thoroughly impeached? When such a case occurs, relief will be granted by this court.

<p>Appeal from Jackson Circuit Court. — Hon. Ralph 8. Latshaw, Judge.</p>

Louis County Circuit Court. — lion. J. W. McElhinney, Judge. The evidence was not sufficient in law to justify the jury in returning its verdict of guilty of rape. State v. Dalton, 106 Mo. 470; State v. Scott, 172 Mo. 545; State v. Lacy, 111 Mo. 541; State v. Bell, 194 Mo. 264.

— Eon. G. E. Skinker, Judge. (1) The indictment is defective for the reason that it fails to specify any certain and specific date when any crime was committed. Each act of intercourse, with an unmarried female under the age of fourteen years, being a separate and distinct offense, the defendant should be apprised, from the pleadings in the indictment lodged against him, of the specific date the crime was committed for which he is called upon to defend against.

— Hon. G. H. Skinker, Judge. (1) Defendants’ request to instruct on all of the law, indicating in such request the particular' points to be covered, is sufficient upon which to .predicate error for non-instruction. Laws 1901, p. 140; State v. Weatherman, 202 Mo. 611; State v. Bond, 191 Mo. 555; State v. Chenault, 212 Mo. 132; State v. Barnett, 203 Mo. 657.

— Eon. A. B. Davis, Judge. (1) Where a defendant withdraws from a conflict in good faith, begun by him, intending to abandon it, his right of self-defense will revive notwithstanding he may have begun the conflict with a felonious, or even a murderous, intent.

— Hon. A. B. Davis, Judge. (1) The court committed error in permitting testimony of witnesses used by tbe State, over tbe objection of the defendant, to prove tbe defendant’s reputation for morality was bad, because the - only issue, if competent at all, would be tbe question of truth and veracity, and not of morality or general worth. State, v. Wertz, 195 Mo. 579.

<p>Appeal from Greene Circuit Court. — Eon.' Alfred Page, Judge.</p> <p>(1) The so-called deed from W. D. Fulbriglit to D. L. Fulbriglit is void for lack of operative words of conveyance. Becker v. Stroeher, 167 Mo. 306; McGarrigan v. Asylum, 145 Cal. 694; Brettman v. Fischer, 74 N. E. (111.) 777; Riech v. Dyer, 86 N. Y. Supp. 544. (2) The deed from D. L. Fulbright to Carleton is either totally void for uncertainty of description or it conveys but a fractional part of the land sued for. The sheriff’s deed attempting to convey Carleton’s interest is absolutely void because of lack of jurisdiction in the court to render judgment in the so-called garnishment proceeding against Carleton. Howell v. Sherwood, 213 Mo. 565. It is also void because it fails to convey any land. Evans v. Ashley, 8 Mo. 177; Nelson v. Broadhack, 44 Mo. 496; Tally v. Schalitz, 180 Mo. 231; Brewster on Conveyances, secs. 71 and 72. Moreover, its invalidity having been judicially declared on the former trial, that is an end of this contention. That the action of this court on its former hearing of this cause is conclusive of the issues presented by this record is demonstrated by the rule announced in: May v. Crawford, 150 Mo. 525; Hayward v. Smith, 187 Mo. 476; Taussig v. Railroad, 186 Mo. 281; Brummell v. Harris, 162 Mo. 402; Bealey v. Smith, 158 Mo. 522; Potter v. Adams, 143 Mo. 665; Sandford v. Herron, 161 Mo. 186; Gracey v. St. Louis, 221 Mo. 5. Lack of jurisdiction may be shown by secondary evidence of the contents of the lost files for the purpose of impeaching the judgment. Eaton v. Hall, 5 Met. (Mass.) 287; Parry v. Walser, 57 Mo. 172; Foulk v. Colburn, 48 Mo. 230; Ravens-croft v. Giboney, 2 Mo. 1; McClanahan v. West, 100 Mo. 321; Davis v. Montgomery, 205 Mo. 271; Land Co. v. Mining Co., 187 Mo. 434; Graham v. O’Fallen, 3 Mo. 507; Burnett v. McCluey, 78 Mo. 689; Howard v. Thornton, 50 Mo. 292. It is also void because the execution is an alias or renewed execution and fails to recite the issue of the former execution, the levies thereunder and the amount realized therefrom. Laws 1863, p 20; Maupin v. Emmons, 47 Mo. 308; Wood v. Augustine, .61 Mo. 50. It is also void because issued for costs in addition to the judgment while the judgment did not carry costs. Under the statute then in force a judgment in garnishment proceedings did not carry costs unless specifically so directed therein. Maloney v. Ass’n, 57 Mo. App. 384; R. S. 1855, chap. 12, secs. 70 and 75, and chap. 40, sees. 6 and 32. ' It is also void because satisfied by the sale under the first execution. It is also void because made returnable to a day in the past instead of to one in the future, the execution being issued on the 7th day of December, 1863, and made returnable to the January term, 1863. The final judgment is also void on account of its failure to require the garnishee to give bond or pay the money found to be due from him to the debtor into court. "Walkeen v. Johnston, 130 Mo. App. 325. (4) The deed from S. H.-Julian to H. E. Howell is void. Because the former public administrator had no authority to execute the same as such administrator. Because there was never any lawful administration upon the estate of Lindenbower. . Because the court acquired no jurisdiction to make order of sale of the real estate of Lindenbower, the proof of publication of notice to creditors and others not having been filed until after order of sale made, and it appearing from such proof that the term of office of Barker, whose jurat is attached to the order of publication, had expired. Fletcher v. Kite, 66 Mo. 285; 2 Chitty’s Gren. Prac., 150. Because the order of sale under which renewal order was made had become fimctus officio. Because the description in the deed is too vague and indefinite to carry title. (5) The judgment in this case is erroneous upon its face, and void for failure to describe the land awarded to plaintiffs. Brummel v. Harris, 148 Mo. 430; Benne v. Miller, 149 Mo. 228. (6) The act of the Legislature under which the trial judge officiated is void. State v. HR1, 147 Mo. 63. (7) The court erred in excluding from the consideration of the jury the letter from Carleton to Sherwood written at the time of the transaction relating to the purchase of the Mt. Vernon St. property. It also erred in excluding from the consideration of the jury the returns contained on writs of attachment and executions which were issued and returned by the sheriff of Greene county within a short time prior and subsequent to the return of the execution under which plaintiff claims title. These returns were offered for the purpose of showing, in corroboration of the testimony of Sherwood, that the sheriff had at this period of time adopted a form of return which failed to comply with the mandatory provisions of the statute governing such returns. Blodgett v. Shaeffer, 94 Mo. 670; Herman v. Lacker, 99 Mo. App. 300; State v. Taylor, 126 Mo. 538; Cramer v. Hurt, 154 Mo. 119;' Matthias v. O’Neil, 94 Mo.'529; Payne v. Railroad, 129 Mo. 420; Broussard v. Bernard, 7 La. 216; Reynolds’ Stephenson on Evidence, p. 24, art. 13; Greenleaf on Evidence, sec. 40.</p> <p>(1) An instrument that acknowledges the receipt of sixteen hundred dollars to pay for a piece of land, which says that the payee shall have and hold it, he and his heirs forever, which contains a warranty of title on the part of the man securing the money and is signed, sealed and acknowledged by him, would seem to be a very lively creature of some kind, and as it is a link in the chain of appellant’s title as well as that of respondents, it should have sufficient vitality to support the legal chain in this suit, considering that it was executed well onto three quarters of a century ago. Whatever may have been the rule erstwhile, the modern rule of construction as applied to a deed is to ascertain the intention of the parties thereto, and especially the intention of the grantor. And if it appear from the instrument as a whole and the language therein that the grantor intended to part with his estate and the grantee to secure the same in presentí then the instrument is a deed, and conveys legal title. Lin-ville v. Greer, 165 Mo. 380; McKinney v. Settler, 31. Mo. 541; Devlin on Deeds (2 Ed.), secs. 174, 211; Long v. Wagoner, 47 Mo. 178; Jennings v. Brizeadine, 44 Mo. 335; Brunsmanri v. Carroll, 52 Mo. 313; Fosburgh v. Rogers, 114 Mo. 134; Peter v. Byrne, 175 Mo. 233; Hunter v. Patterson, 144 Mo. 310; Roberts v. Mclntire, 84 Me. 362; Anglade v. St. Avit, 67 Mo. 435. (2) In ejectment where both parties claim through a common source of title, it is unnecessary to go back of that title. It is sufficient for the planitiff to deraign his title from the common sources. Holland v. Adair, 55 Mo. 40; Butcher v. Rogers, 60 Mo. 138; Miller v. Hardin, 64 Mo. 545; Smith v. Lindsey, 89 Mo. 76; Grandy v. Casey, 93 Mo. 595; Huff v. Morton, 94 Mo. 405; Holland v. Adair, 55 Mo. 40; Bank v. Harrison, 39 Mo. 433; Cummins v. Powell, 97 Mo. 524; Choquette v. Barada, 33 Mo. 249. A necessary corrollary of the rule under consideration is that where there is a common source of title agreed to, assumed, or shown to exist and relied on, then irregularities in conveyances prior to the common source, become weaknesses' common to both litigants and hence immaterial. Ebersole v. Rankin, 102 Mo. 498; Machine Works v. Bowers, 200 Mo. 234; Sloan v. Chitwood, 217 Mo. 465. (3) The first contention of a lack of jurisdiction defeating' the deed from the sheriff to Jamison is answered by the verdict of the jury declaring the return to have been regular. A sheriff’s deed set out fully certain judgments, and also set out certain executions, but failed to couple tbe executions with the judgments, but tbe names of tbe parties, and tbe amounts as set out were identical. Held that it was inferable that tbe executions were on these judgments and that such omissions are not fatal to the deed, inasmuch as they could mislead no one. Wack v. Stevenson, 54 Mo. 481; Gaines v. Pender, 82 Mo. 507. (4) Tbe substance of appellant’s next contention is that, tbe finding of facts being against tbe respondents and tbe judgment for respondents in tbe first trial of this case, tbe finding of facts is conclusive on respondents. This is not tbe law. Where tbe judgment is wholly in respondent’s favor be is not concluded by any finding of facts made by tbe trial court to which be did not except. Egger v. Egger, 225 Mo. 118; Patterson v. Patterson, 200 Mo. 335. (5) Appellant’s next contention is “lack of jurisdiction may be shown by secondary evidence of tbe contents of tbe lost files for the purpose of impeaching a judgment.” An inspection of tbe instructions given by tbe trial court will show this court that this case was tried upon tbe above theory. Tbe only question pertinent to this matter, was a question of fact, was tbe question as to whether tbe testimony of an interested witness, a defendant in an ejectment suit testifying as to tbe contents of a lost return of service, which be last saw in 1866 or 1867, and which be did not act on for more than thirty years, was of sufficient probative force to destroy tbe validity of a judgment of a court of record, rendered in 1863, when that witness’s own testimony showed that bis memory was at fault as to every thing else occurring about that time. (6) A “former public administrator bad authority to execute deeds.” Sec. 309, E. S. 1879; Bray v. Adams, 114 Mo. 486. (7) Tbe judgment can be aided by reference to other parts of tbe same record. Dixon v. Hunter, 204 Mo. 383. Where tbe record before tbe appellate court shows that certain persons were made parties plaintiff and that judgment was in favor of plaintiffs, the court will correct any informality in the omission of their names from the caption or body of the judgment, Walker v. Railroad, 193 Mo. 475; Morrison v. Turnbaugh, 192 Mo. 446; Dixon v. Hunter, 204 Mo. 383. A mere informality in drafting a verdict or entering a judgment which works no prejudice to the complaining party will not be ground for reversal. Holmes v. Braidwood, 82 Mo. 610; Hornblower v. Crandall, 78 Mo. 581; Hanley v. Holton, 120 Mo. App. 402.</p>

— Hon. H. M. Ramey, Judge. The demurrer offered by the defendant at the close of plaintiff’s case and again at the close of defendant’s case should have been sustained: (a). By statute and by ordinance, plaintiff was required to stop the street car being operated by him, not less than ten feet south of the south rail of the Union Depot track at the point where the collision occurred. R. S. 1909, sec. 3303; Rev. Ordinances of St. Joseph, sec. 1079'.

Mandamus. Original Proceeding. (1) The notice is sufficient according to the special statute,- sec. 1261, which, governs that question. It is evident that each and every-requirement of said statute was fully met to the letter, and it certainly must be conceded that said statute does not require the polling places to be designated in said notice.

Louis City Circuit Court. — Hon. II. M. Foster, Judge. The court erred in sustaining defendant’s demurrer to plaintiff’s amended petition.

— Hon. Howard Gray, Judge. (1) Plaintiff’s action is based on tbe Act of May 10, 1907. (Laws 1907, p. 251). This may give a right of action to tbe injured agent or servant, but does not transmit any cause of action to tbe widow in case tbe agent or servant is killed. Strottman v. Railroad, 211 Mo. 227; Broadwater v. Railroad, 212 Mo. 437; McMurray v. Railroad, 125 S. W. 751; Henderson v. Railroad, 133 S. W. 151.

Louis City Circuit Court. — Ron. James E. Withrow, Judge. The court erred in sustaining defendant’s demurrer to the evidence for the reason that there was substantial evidence offered by plaintiff tending to show that the defendant was guilty of negligence in two particulars : First, in maintaining its platform without a railing at the east end where it was necessary, and as a result of whch the platform was not in a reasonably safe condition.