Volume 246 — Missouri Reports

Francois Circuit Court. — Hon. Gharles A. Killian, Judge. (1) The petition in this cause alleges fraud, the evidence conclusively establishes fraud in the procun ing of the judgment and in all of the acts of Hill prior thereto.

<p>1. NOMINATIONS: By Petition of Electors: New Parties. The election laws of this State leave open the door for the formation of new parties hy any considerable portion of the electorate. Under Sec. 5833, R. S. 1909, electors may choose a party name, and hy a petition designate such name and their candidates, ■ and have those names printed on tickets under that party name. The Act of 1909, being Sec. 5855, R. S. 1909, declaring that “hereafter all candidates for elective offices shall he nominated hy a primary election held in accordance with this article,” relates to nominations hy a primary election, and was meant to put a stop to nominations hy conventions, and was not. intended, in the case of a new party, to prevent the nomination of candidates hy petition signed hy the requisite number oE electors, as provided hy said section 5833. Nor was said section 5855 intended to prevent the naming of an independent nonpartisan candidate hy petition of electors.</p> <p>2. -: By Conventions. Candidates for Representative are not entitled to have their names placed upon the official ballots to he used at the general election in November, hy reason of the fact that they were nominated, hy a convention of delegates of their party, although such party has sprung into existence since the last general election. The very purpose of Sec. 5855, R. S. 1909, enacted in 1909, was to eliminate from the existing laws that portion thereof which authorized a party nomination hy a convention of delegates.</p> <p>3 -: gy Committee: New Party. Under Sec. 5870, R. S. 1909, declaring that “vacancies occurring after the holding of •any primary, or when no person shall offer himself as a candidate before such primary, shall he filled by the party committee,” the political committee of a party organized prior to the date fixed by the statute for holding the primary election, but after the time for taking the préliminary steps for said primary had expired, for instance, not until after the time fixed by the statutes for filing declarations of candidacies, has power to name their party candidates for offices, and such candidates are entitled to have their names placed upon the official ballots of said new party to be used at the ensuing general election.</p> <p>4. -: -: -: No Party Committee. Said section 5870 is broad enough to permit a party committee of any new nation-wide party to fill any vacancy on the party ticket; nor is its right to fill such vacancies to be denied by election commissioners on the ground that the committee was not chosen in the manner prescribed by the statutes; for, if it consists of committeemen actually performing duties prescribed by law and claiming to act authoritatively for an actual party, it is a de facto committee, whether or not a de jure one, and its acts, even if an usurpation of authority, cannot be called in question •by a board of election commissioners in a collateral proceeding, such as an application of the candidates named by the committee to have their names placed on the official ballots.</p> <p>5. -: -: -: Necessity for Party Committee. The law does not prevent the organization of a new party, and a party organized after the time for taking the preliminary steps for the general primary had expired, must in its own way choose a committee to act for it, and that committee has power to name candidates where none could be named at the primary. The statutes prescribing the methods of nominating party candidates for office and the choosing of party committees are statutes of regulation and not statutes of prohibition.</p>

Mandamus. (1) Eelators are seeking to enforce a constitutional right, have complied with the law and are entitled to an outlet. The Constitution creates the right and the Legislature has no power to limit it, but can only prescribe the modus operandi by which the way may be obtained.

Mandamus. (1) Our Constitution means that if a Senator or Representative desires another office during his term, he must procure it by the votes of the people — he elected; that he cannot exert the influence of his office by the passage of a law, or otherwise, to be appointed to an office.

Mandamus. (1) The contract in question is analogous to contracts for the public supply of water by municipalities in which it is held “that no indebtedness of the city (within the meaning of Sec. 12, Art. 10, of the Constitution) accrues under the contract until the supply of water has been furnished, as agreed, year by year.” Water Co. v. Lamar, 140 Mo. 145; Saleno v. Neosho, 127 Mo. 627; Water Co. v. Lamar, 128 Mo. 188; Water Co. v. Neosho, 136 Mo. 498; Trask v. County,…

— Hon. Argus Cox„ Judge. It is impossible to know from the manner in which the so-called abstract has been prepared, what is record proper and what is, or was, matters preserved by exception. Jackson v. Bolt & Nnt Co., 238 Mo. 657; Owens v. Mathews, 226 Mo. 77; Kolokas v. Railroad, 223 Mo. 461; Wallace v. Libby, 231 Mo. 341; Barnham v. Shelton, 211 Mo. 66; Clay v. Wholesale Co., 200 Mo. 637; Keeton v. Weber, 233 Mo. 691; Pngsley v. Cooperage Co., 154 Mo. App. 386.

— Hon. Hugh Dabbs, Judge. As matter of law, tlie county surveyor’s survey is presumed to be true until shown to be incorrect, while tbe survey of W. E! Smith must be shown to be correct, and the survey itself of this nonofficial surveyor is not admissible as evidence, even if shown to be correct. There was no evidence that the nonofficial survey should have been received as legally sufficient, to impel a judgment in plaintiff’s favor, it.

<p>1. JURISDICTION: Raised by Court. Jurisdiction of the subject-matter can neither be waived nor conferred by consent of counsel; 'a court, ex mero motu, may raise the question of jurisdiction. Whether or not jurisdiction of the subject-matter exists in a concrete case is a question that springs spontaneously for inquiry at any step or stage of the suit, and may be raised at any time by the court itself:</p> <p>2. APPELLATE JURISDICTION: Condemnation Case: Title to Real Estate: Leasehold. The Supreme Court has jurisdiction of an appeal from a judgment in a condemnation case where title to real estate is involved, hut it does not have jurisdiction where the whole controversy is between a railroad company and the lessee as to the value of a lease for a term of years on the land taken, and the amount involved is less than $7500.</p> <p>3. -: -: Leasehold. A leasehold for a term of years is' not real estate. At common law it was a chattel, and the statutes have not changed it from personal property into real estate for the general purposes of the law. [Following Orchard v. Store Co., 225 Mo. 414'.] And a suit by a railroad company to condemn land, in which the entire controversy finally resolves itself into a contention between the company and a lessee of the land taken, as to the value of the lease for a term of years and the damages resulting to the lessee from breaking up an existing business thereon, does not so involve title to real .estate as to give the Supreme Court jurisdiction of the appeal.</p>

<p>CORPORATIONS: Mercantile: Ultra Vires Contract: Mortgage of Real Estate. A mortgage conveying the real estate of a mercantile corporation as security for notes given in payment for shares of its own stock purchased either by the corporation itself or by its president, is ultra vires and void.</p>

<p>1. QUIETING TITLE: Common Source: Deed from Thomas C.: And Deed from Thomas C. and Another. Plaintiffs undertook to deraign title from Thomas C. Powell; and showed that Thomas C. Powell bought the land from the county, that by sheriff's deed the title passed to John E. Powell, and that they succeeded to John E. Powell’s title. Defendant relies on a deed from Thomas C. Powell and John H. Powell, subsequent in date to said sheriff’s deed. Eeld, that no common source of title was shown. There is a vast difference between a deed from Thomas C. Powell alone, and one fro.m Thomas C. Powell and John H..Powell.</p> <p>2. -: --: Necessary Showing. In a suit to quiet title, both sides must dereign title from a common source, or plaintiff, out of possession and claiming only through a paper title, must show a good paper title.</p> <p>3. -: -: Swamp Land: Certificate of Entry: Receiver’s Receipt: Carleton’s Abstract. A mere certificate of entry was insufficient to pass title to swamp land. A receiver’s receipt showing the lands to have been paid for would give the payor an equitable interest in the lands described therein; but Carle-ton’s abstract of registry entry in Register Book 1, page 52, is not evidence of such a receipt. [Following Nall v. Conover, 223 Mo. 1. c. 492.1</p>

— Hon. James D. Barnett, Judge. (1) Adjoining owners- of land may agree upon the division line between their premises and each owns up to the agreed line as fully as if it were a natural boundary or their respective deeds called for it.

W. N. Evans, Judge. The test in this State as to whether an amended petition is a new cause of action and departure from the original is whether the same evidence will support both petitions, and second, whether the same measure of damages will apply to both. It is hardly conceivable that the title to a tract of land in one section would be exactly the same as the title to a tract of land in another section. Different proof would be .required in the separate actions.

— Hon. Walter A. Powell, Judge. (1) The court committed error in overruling tlie application of People’s lee, Storage & Fuel Company for change of venue. Corpenny v. Sedalia, 57 Mo. 88; Mix v. Kepner, 81 Mo. 93; Dowling v. Allen, 88 Mo. 293. The serving of the notice on the prosecuting attorney in open court, and the immediate filing of the application and notice was sufficient. Douglas v. White, 134 Mo. 228.

<p>1. APPEAL: Abstract: Bill of Exceptions. Matters of exception will not be reviewed on appeal unless tbe abstract of the' record proper shows that a bill of exceptions was filed, and the-fact of filing is not proved by a statement in what purports to. be, and is headed, a “Bill of Exceptions,” that “the defendant tenders this, its bill of exception's, and prays that the same maybe .. . filed, which is accordingly done,” followed by the-signature of the judge.</p> <p>2. -: -: Motion for New Trial. Matters presented oa. an appeal from an order sustaining a motion for a new trial will, not be reviewed unless it appears, from the abstract of the-record that such motion was made and passed upon.</p>

Louis County Circuit Court.— Hon, JoJtn W. McElhinney, Judge. (1) The trial court erred in finding that the contract offered in evidence is not an agreement by Mrs. Hiett to convey or sell to defendant Moore. In Kelly v. Thuey, 143 Mo. 422, paragraph five, the court says these are three essentials to a contract: First, parties; second, subject-matter; third, the consideration or price. The contract in the case at bar has all three of the essentials.

Louis City Circuit Court. — Hon, Virgil Rule, Judge. (1) Defendant’s answer states no defense, for besides matter that is not material, it simply pleads a legal conclusion and is not responsive to the petition. R. S.1909, Secs. 1800 and 1804.

— Hon. David 11. Ebyr Judge. (1) ’Where a common source of title was admitted or proven, then adverse possession will constitute a defense. Emstring v. G-leason, 137 Mo. 594.

<p>1. LOCAL OPTION LAW: Title: City Election, etc., Germane. Thé title to the Local Option Law is not in conflict with the ’ coristitutional provision declaring that no hill shall contain more than one subject, “which shall he clearly expressed in its title.” The title provides for “submitting the question of prohibiting -the sale of intoxicating liquors to the qualified voters” of thé county and certain cities, and the provisions in the body of the act for a petition for such an election to he signed by one-tenth of the qualified voters, that such petition shall be addressed to the city council of the city, that the city shall order the election, that the city shall conduct the election, that it shall record the result, pay the expenses and may take a census, are all germane to that title, and are all necessary details of a fair election.</p> <p>2. -: Election: Within Sixty Days of a State Primary. The Local Option Law does not prohibit an election thereunder within sixty days of a state primary for the nomination of candidates for office. The words of that statute that “no such election, held under the provisions of this act, shall take place on any general election day, or within sixty days of any general election held under the Constitution and laws of this State, so that elections as are held under this act shall be special elections, and shall be separate and distinct from any other election whatever,” are explained by Sec. 6570, R. S. 1889, which declared that “the term ‘general election’ refers to the election required to be held on the Tuesday succeeding the first Monday of November, biennially,” and by many other statutes and the, Constitution itself, in which the words “general election” are used to designate the regular biennial election for the election of the officers of the State and its political sub- - divisions; and the further provision of that statute to the effect that such local option election in a city shall not be held “within sixty days of any municipal or state election held in such city” was simply intended to add the words “municipal election” to the words “general election” used in the provision in reference to counties.</p>

— Hon. David H. Eby, Judge. (1) The fact that John H. Walkup and Emma W. Walkup were husband and wife at and prior to the date of the obtaining- of the original judgment by the appellant herein against the said John H. Walkup and that the land in controversy was purchased during coverture, being admitted or, at least, uncontroverted by the evidence in this cause, the presumption is that each and every tract of land in controversy was paid for by John H. Walkup', the husband.

— Ron. F. G. Johnson, Judge. (1) Plaintiff’s petition entirely fails, to state facts sufficient to constitute a cause of action. It is not alleged in the petition that plaintiff claims any title, estate or interest in the property mentioned therein, either as owner of the property, or that he claims the interest and title of the said Vaughn H. Todisman by reason of being the trustee of said Todis-man, which is necessary under Sec. 650, R-.

— Hon. W. N. Evans, Judge. (1) Color of title is not essential to adverse possession. Mere possession under claim of ownership is sufficient. Mather v. Walsh, 107 Mo. 121; Quick v. Rube, 164 Mo. 408. (2) It is not necessary that color of title be created by deed or other instrument of writing. It may be created by an act in pais without writing. Rannels v. Rannels, 52 Mo. 108.

<p>1.EJECTMENT: Judgment: Default. It was error for the trial court, in ejectment, to enter default and proceed to final judgment against the defendant, when, his general denial still standing as 'a pleading in the case, he refused to plead further after a demurrer to his plea in confession and avoidance was sustained.</p> <p>2. -: Appeal: Record. Where plaintiff’s motion to strike out a plea of confession and avoidance in defendant’s answer was overruled, hut after change of venue his demurrer to the same plea was sustained, defendant’s contention that the sufficiency of his plea was res adjudicata after the overruling of the motion to strike out, cannot be considered on appeal, unless, by moving to strike out the demurrer or by some other appropriate course upon the record, he apprised the trial court of his intention and gave it an opportunity to review its decision.</p> <p>3. -: Improvements: Lien. Where a purchaser of land is sued in ejectment by the vendor, because of failure to pay the stipulated installments of the purchase price, he cannot have the value of improvements, made under a collateral contract, charged as a lien on the land in the same action, but must set them off against the damages for rents and profits claimed by the vendor.</p> <p>4.-: -: Damages: Rents and Profits. Where the vendor of land elected to forfeit the contract of sale for nonpayment of installments of the purchase price, and to keep, under a provision of the contract, the payments already made in full satisfaction of damages for the breach, and sued the vendee in ejectment, the defendant had the right to offset the value of his improvements on the land against the, plaintiff’s claim for damages on account of mesne profits and a judgment which fails to allow such offset must be reversed, upon the facts of this case, even though the damages allowed were merely nominal.</p>

— Hon. A. W. Walker, Special Judge. (1) The conversation between witnesses Dunn •and Leggett and the conversation between Westbrook and Leggett were inadmissible and highly prejudicial to defendant, (a) As to the first, it is admitted by Dunn himself that said conversation did not take place In the presence of the defendant, and that it was had after December 16, 1908.

<p>Appeal from Bay Circuit Court. — Ho». Francis H. Trimble, Judge.</p>

— Now. G. A. Galvird, Judge. (1) The testimony of the prosecuting witness was so‘ unreasonable, contradictory and inconsistent that the jury should have been instructed at the close of the State’s case or after the introduction of all the testimony to acquit the defendant. State v. Prendible, 165 Mo. 353 ; State v. Huff, 161 Mo. 487; People v. Lyons, 51 Mich. 215.

<p>1. JURISDICTION: Want of to be Affirmatively Shown: Appeal The rule that want of jurisdiction must be affirmatively shown extends to the manner of organizing and opening court, and accordingly the Supreme Court refuses to consider appellant’s contention that the record in this case does not show that the order made by the judge of division one of. the Jackson County Criminal Court, requiring the judge of division two to open a term of court, was put in writing or served on the judge of division two as required by law.</p> <p>2. CONTINUANCE: Appeal: Record. The propriety of refusing a continuance is not legally before the Supreme Court, where the bill of exceptions does not show the application therefor, and does show that the defendant answered ready when the case was called.</p> <p>3. EVIDENCE: Homicide: Insanity: Collateral, Kindred. Evidence as to the insanity of collateral kindred of the defendant in a homicide ease is not relevant under the defense of insanity.</p> <p>4.-: -: -:-: Cumulative. Tie showing in evidence that an aunt of defendant was insane-rendered unnecessary all cumulative evidence as to others of his aunts and uncles, and precludes a ruling as to whether such aunts and uncles are defendant’s collateral kindred in the sense conveyed by the rule of exclusion.</p> <p>5. -: -: -:-: Non-Expert’s Opinion. Where the facts are in evidence upon which a non-expert witness based an opinion as to the insanity of defendant’s grandfather, and the erroneous exclusion of the opinion itself did not materially weaken the effect of the evidence, such exclusion does not call for the reversal of this conviction of defendant for murder.</p> <p>6. -: -: -:-: Harmless Exclusion. In this prosecution for murder, to. which the defense of insanity was interposed, the exclusion of testimony of family tradition that the mind of defendant’s grandfather, who lived to he eighty or ninety years old, had been had for years, and that he lost his mind and had to he taken care of toward the last, was not reversible error. There was other evidence that quite a number of years before his death his mind failed, and, aside from that, it was no serious impeachment of defendant’s sanity that his grandfather’s^ mind, failed at an advanced age.</p> <p>7. INSTRUCTIONS: Murder. An instruction in a murder case is not erroneous because it reads: “and by the means and in the manner charged in the indictment and explained by instructions . . . herein.”</p> <p>• 8. -: -: State v. Duestrow. Instructions in a murder case based upon those in State v. Duestrow, 137 Mo. 41, -are upheld.</p> <p>9. -: Convicted of Murder: Manslaughter. A defendant convicted of second degree murder cannot complain of an instruction given, on the subject of manslaughter.</p> <p>10. ATTORNEYS: Improper Remarks in Argument. Where an attorney for the State made improper remarks to the jury in his argument, and withdrew them, only to make others of like kind and again withdraw them, the Supreme Court affirms the judgment convicting defendant of murder, only because there are no serious doubts in the minds of the court, arising out of the evidence, as to defendant’s guilt.</p> <p>11. JURORS: Competency. Taking their examination as a whole, as it is set out in the statement of this case, two jurors are held competent in a prosecution for murder to which the defense of insanity is interposed.</p>

— No». Matt Q. Reynolds, Judge. (1) The court erred in excluding the memorandum in the private book of accounts of F. W. Henze, dated August 1, 1896. 2 Wigmore on Evidence, Secs. 1455, Í458, 1464; Greenleaf on Evidence (16 Ed.), Secs. 150-152. (2) The court committed error in excluding the testimony of L. F. Ottofy with reference to conversations with F. W. Henze. ( Hamil v. England, 50 Mo. App. 346.

— Eon. Herman Bntmbach, Judge. (1)’ The court erred in giving defendants’ instructions in the nature of demurrers to plaintiff’s evidence at the close of plaintiff’s evidence. (2) The court erred in overruling plaintiff’s motion to set aside the involuntary nonsuit taken by plaintiff after the giving of said instructions of defendants in the nature of demurrers to plaintiff’s evidence.

— Eon. Walter A. Powell, Judge. (1) Elizabeth Easter holds the property in question by virtue of a warranty deed, absolute on its face. Before plaintiff can impress a resulting trust on the property, he must establish his case by strong, clear and unequivocal evidence, falling but little short of demonstration. ' This he failed to do. The only direct evidence on this point was his own.

.Appeal from St. Louis City Circuit Court. — lion. Moses N. Sale, Judge. (1) Gifts, grants or donations, obtained by attorney from client, adviser from advisee, trustee from ■cestui que trust, parent from child, and guardian from ward are watched by courts with the most scrutinizing .jealousy and generally held to be presumptively void. Garvin v. Williams, 44 Mo. 465.

Appeal'from St. Louis City Circuit Court. — Eon. Matt G. Reynolds, Judge. (1) No one but a party to the suit can have an execution. Price and Nichols were the attorneys for the plaintiff, and Gerhart, Grenner and Trembley were the commissioners appointed by the court to make the partition and had no authority to direct the issuance of an execution.

<p>1. PUBLIC ROAD: Evidence Necessary to Establish Existence-In 1862, an order of the county court of St. Louis county attempted to establish a public road called Sulphur avenue. The order was void, but in 1866 a member of the plaintiff corporation signed a communication to the court recognizing the existence of a road there, and his testimony shows that in 1863 there was a road with good fences on either side.- In 1875 the plaintiff was one of forty-six petitioners asking the county court to-grade said road, which in 1876 was taken into the city of St. Louis; in 1882 said plaintiff acquired land bordering the highway by deeds which stated they were subject to“ it, and in 1889-the plaintiff, its charter expiring, made to itself as a new corporation a deed showing the existence of the highway. The-city, in 1889, replaced a bridge on said highway. Held, in this suit to enjoin the removal by the city of plaintiff’s structures, from the right of way, that the land in question was a public highway.</p> <p>2. -: User for Ten Years. The use of a road for ten years with the acquiescence of the owner makes it a valid road.</p> <p>3.-: Title Vesting in City. By virtue of Sec. 10, Art. 1, of the Scheme and Charter of St. Louis (1876), the interest of St. Louis county in all public roads and highways taken into the city was vested in said city. Semble, that independent of such provision such would be the result of taking a public road into-a city.</p> <p>4. -: City Streets: Sec. 10446, R. S. 1909. Although in. this case it is not clear there was such nonuser, it is held that Sec. 10446, R. S. 1909, providing that “nonuser by the public for a period of ten years continuously of any public road shall be deemed an abandonment,” does not apply to city streets.</p> <p>5. CITIES: Streets: Title not Lost by Abandonment or Adverse Possession. The right of a city and the public to the use of a. street cannot be lost by abandonment or adverse possession.</p> <p>6. -: -: Title: Estoppel. A city is not estopped from asserting title in a street by the declaration of its street commissioner that the ground in question was not a street, nor by its ordinance condemning the right of way for the purpose of laying sewer and water pipes.</p>

— Ron. Alonso ZA Burnes, Judge. (1) Sec. 367, E. S. 1909, provides that the value of the whole dower to her belonging from the time of her husband’s death, if he died seized in land, until the day she shall recover her dower, shall be assessed as her damages.

<p>1. PLAT: Presumption. Where a plat has been made and filed in accordance with Sec. 10290, R. S. 1909, describing ail lots for sale, by numbers, and their precise length and width, the law presumes that the lots and streets were accurately surveyed and marked out on the ground as a basis for the plat.</p> <p>2. -: -: Internal Evidence. Where a plat filed according to Sec. 10290, R. S. 1909, shows the curving course of a railroad marked thereon; where the lengths of the lines running east and west as boundaries of the lots are also marked; where the lots bordering on the railroad are irregular in shape and the lengths of their boundaries are marked accordingly; where an old hedge fence corresponds with one boundary of the land as called for by the distances given in the plat, and where an old . fence around defendant’s lot therein is placed in accordance with the plat, — these things, taken in connection with conceded extrinsic facts, show that the plat was based on a survey not only of the boundaries of the addition but of the interior lot lines.</p> <p>3.-: Unmarked Lines: Calis for Distance. An unmarked section line does not constitute either a “natural monument” or an “artificial mark,” and does not overcome a call for distance.</p> <p>4. -: Evidence: Surveyor. The testimony of a surveyor who did not put the data of his survey in evidence or show that he was the county surveyor when he made his survey, is not evidence as to the location of the boundaries of an addition to a city.</p> <p>5. SURVEY: Illegal: Surplus. A survey is illegal which makes a surplus of thirty feet in the width of the east half of a section, in violation of the act of Congress which requires that in subdividing fractional sections on the west side of a township, the surplus over forty chains in width shall all go to the west side of the section.</p> <p><8. EJECTMENT: Plat: Showing of Right. When the defendant in ejectment is in possession claiming under a plat as actually laid out on the ground, the plaintiff cannot displace her except by affirmatively showing a better right.</p> <p>7. SURVEYS: Presumptions. .Where' surveys are illegal in the matters shown to the court, it will not be presumed that they were correct in those particulars as to which the court is not informed.</p> <p>8. PLAT: Considered as a Whole. A plat is not to be taken to pieces; it is to be taken as a whole.</p> <p>9.-: Not be Warped to Right or Left. The boundaries of a lot as laid out by a plat will not be changed when to do so would shift to the eastward the position of every lot in a whole block and destroy the addition as laid out, substituting therefor another and a different one.</p>

<p>Appeal from Lafayette Circuit Court.- — Eon. Samuel Davis, Judge.</p>

— Hon. W. N* Evans, Judge. (1) The dissolution of defendant, the Bank of Essex, deprived the circuit court of jurisdiction to proceed further herein and the action abated. 9 Am. & Eng. Ency. Law (2 Ed.) 606; Bank v. Selma, 21 Wall. 609; 5 Ency. PL & Pr., p. 96; Youree v. Insurance Co., 180 Mo. 164; Sauer v. Hotel Co., 65 Mo. 287; Bradley v. Rappell, 133 Mo. 552.

<p>Appeal from Schuyler Circuit Court. — Ron. Npt M. Shelton, Judge. •</p> <p>This Act -does not deny to the defendant the equal protection of the laws. Eailroad v. Humes, 115 U. S. 523, 29-L. Ed. 463; Barbier v. Connelly, 113 U. S. 27, 28 L. Ed. 923; Hing v. Crowley, 113 U. S. 703, 28 L Ed. 1145.'</p>

<p>1. PROHIBITION: Jurisdiction: Inadequacy of Ordinary Remedies. If tlie court lias jurisdiction to do what it is about to do, the writ of prohibition will be denied. Mere inadequacy of or delay in other remedies, or hardships springing from or incident to the use of other ordinary remedies, fill a subsidiary office in guiding the discretion of the court in issuing the writ and persuading its issue, but do not, of themselves, furnish the sole ground for the writ.</p> <p>2. QUIETING TITLE: Dismissed by Plaintiff: Continued by Defendant. Under the present statute to quiet title (being Sec. 650, R. S. 1899, with the. amendment of 1909, Laws 1909, p. 343. added thereto) a dismissal by plaintiff of his suit to ascertain and determine the title to described real estate, does not ex necessitate carry the entire case out of court; but defendant, having asserted title in his answer, upon which he demands affirmative relief, is entitled to remain in court and have a decree or judgment determining the title as between him and plaintiff.</p> <p>3.-:-: -: Interpretation of Statute. The venerable and salutary rule for the interpretation of a statute announced in Haydon’s Case, 3 Coke’s Rep. 7 b., pp. 19-20, is adopted, namely: For the sure and true interpretation of all statutes, he they penal or beneficial, restrictive or enlarging of the common law, four things are to he discerned and considered: 1st, What was the common law before the making of the act? 2d, What was the mischief or defect for which the common law. did not provide ? 3d, What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth; and, 4th, The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the act, pro bono publico.</p> <p>4. -: -:-: -: As Applied to Amendment. to Sec. 650. In the light of the above rule, it having been formerly adjudged that under old section 650 the court would leave the parties, to a suit to quiet title, to another suit to enforce their rights under a mortgage or other lien, or under some trust requiring an accounting, or under some equities to adjust; and it being known to the court that in some circuit courts a defendant, after a dismissal by plaintiff, could not, under section 650, hold plaintiff in court to try out and settle a claim and title asserted by defendant against plaintiff, it is held, that the broad language of the amendment of 1909 to said section 650, which provides that “upon the trial of such cause, if same be asked for in the pleadings of either party, the court may hear and finally determine any and all rights, claims, interests, liens and demands whatsoever of the parties, or of any one of them,” the mere dismissal of his suit' by plaintiff does not carry the entire case out of court, hut defendant, having in his answer asserted title in himself and asked for affirmative relief, is entitled to remain in court and invoke the court’s decree or judgment.</p> <p>5. -: Will Contest Pending: Refusal to Continue or Stay: Prohibition. An application for a continuance, or a motion in the nature of such application to stay the trial of the suit, is • directed to the sound discretion of the court, and raises a question reviewable on appeal, but does not raise a question of jurisdiction. So that where plaintiff, claiming as devisee under a will, brought suit to quiet title, and afterwards brought another suit in the same court to contest a will under which defendants in the first suit had set up title to the land, and,the suit to quiet title being reached for trial on the docket, filed his motion to continue or stay the suit to quiet title until the validity of the will be determined'in the other suit, this last motion did not raise a question of jurisdiction, but only a question of discretion, which, if wrongfully ruled, may be corrected on appeal, though the motion suggested a safe course of procedure.</p> <p>6. -: -: Contest Vacates Probate of Will: Prohibition. If it be true that a suit to contest a will vacates a formal probate of the will, and that defendants in the suit to quiet title, depending wholly on the validity of that will, cannot maintain their cross action in the suit to quiet title until the will be confirmed, the court will commit only error if it adjudge title to defendants pending the will contest, and that error can be corrected by ordinary remedy on appeal, and therefore prohibition will not lie to prohibit the trial court from trying the suit to quiet title until the will contest, already instituted, be determined.</p> <p>7. -: Question of Estate Devised by Will: Prohibition. Whether or not plaintiff in a suit to quiet title took title to the real estate under a will, is not for consideration in determining whether' a writ of prohibition should go to prohibit the trial court from trying the suit to quiet title until another suit to contest another will under which defendants claim is determined. The question of whether the will vests the title in plaintiff can be determined on appeal or writ of error..</p> <p>8. -: Will Contest: Right to Maintain: Merits: Prohibition. Neither the merits of the suit to quiet title nor the merits of the suit to contest the validity of a will under which defendants claim title are for consideration on prohibition. The trial judge’s jurisdiction does not depend upon his views of the meaning of that will. So that neither the trial court, nor this court in determining whether or not a writ of prohibition shall issue, can determine whether or not relator can maintain a suit to set aside a will under which defendants in the suit to quiet title claim.</p>

Prohibition. (1) If the municipal court had no jurisdiction either of the original proceedings under ordinance 3209 or of the' supplemental proceedings (so.-called) ■under ordinance 7539, then the circuit court on appeal would have no jurisdiction.

Prohibition. (1) The charter of Kansas City does not provide for an appeal in a supplemental proceeding begun in the municipal court of Kansas City from that court to the circuit court, and the respondent has no jurisdiction over the supplemental proceeding over which he has assumed jurisdiction. Sec. 23, Art. 6, Charter; Sec. 6, Art. 6, Charter; 1 Bouvier’s Law Dictionary, 149; Wiscaret v. D’Auchy, 3 Dallas (TJ.

Mandamus. (1) The fact that constitutional questions had been injected into the case pending before respondent, and were being considered by him before the jurisdiction of the St. Louis Court of Appeals was invoked, operated to oust said court of all jurisdiction over the subject-matter of the controversy, and the ex parte writ of prohibition issued by said court was and is void for that reason. Constitution, Amendment of 1884, Sec. 5; State ex rel. v. Nortoni, 201 Mo. 24.

<p>1. APPEAL: Jqrisdiction: Consent. If the appeal is to the Supreme Court it cannot by a motion filed by each side be transferred to a court of appeals. Jurisdiction cannot be conferred by consent.</p> <p>2. -: --: Misdemeanor: Information Quashed: Appeal by State. Under the Constitution of 1875 and the amendment thereto of 1884, an appeal by the State from an order quashing an information charging the crime of disturbing the peace or any other misdemeanor is to the proper court of appeals. Those constitutional provisions, as to misdemeanors, supplanted the statute of 1855 (Sec. 5305, R. S. 1909) specifically providin'g for an appeal by the State to the Supreme Court in all cases where an indictment or information is quashed.</p>

— Ho». Alonso D. Burnes, Judge. (1) (a) The court erred in giving’ instruction 4 on behalf of the State. The defendant did not attempt to prove his good character and the fact that he did not should not have been commented upon. This instruction could but have been regarded as a comment on that fact and was very prejudicial to defendant. (b) The court erred in giving instruction 5. There was no evidence of any conspiracy between this defendant and any one.

Louis City Circuit Court. — Now. George H. Shields, Judge. (1) This is not a State case; the city is relator and thé real party in interest, (a) The city cannot, as the governmental agency of the State, maintain quo warranto proceedings. Kavanangh v. St. Lonis, 220 'Mo. 518. No such power or authority is granted the city by charter, statute or otherwise, expressly or impliedly.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) Even assuming a franchise was acquired and that the franchise was assignable, the West End Light & Power Company acquired nothing by the assignment, since.Browning, King & Co. had failed to “accept and comply with ordinance 12723,” and were therefore not within the exception created by ordinance 16894.

<p>1. WILL CONTEST: Dismissal. After'a will contest is properly instituted in the circuit court by a person in interest, it cannot he dismissed without an adjudication upon the will. The fact that issues have not been joined and no objection to dismissal is made by defendants, will not justify a dismissal by plaintiff.</p> <p>2. --: By Whom Instituted: Dismissal. Only a person “interested in the probate of a will” can institute a suit in the circuit court to contest its validity; and the interest referred: to must be a financial interest in the estate, and one which would be benefited by setting the will aside. A total stranger can not institute a will contest and invoke the jurisdiction of the circuit court to vacate the judgment of the probate court. And if it appears from the face of the petition that if the will is set aside the contestant will get nothing, she is not a party in interest, although the will gives her $15,000. And if the suit is instituted by a person who has no interest, it may be dismissed by such person without an adjudication upon its. validity, for then the judgment of the probate court stands.</p> <p>3. -: -: Alleging Adopted Children. A sister of testator who in her petition contesting the will states that he had, prior to the execution of the will, lodged in the. circuit court of Kentucky a petition praying for the adoption of three children who. are named as the principal devisees and legatees, and that said court acted upon said petition and entered an order declaring said children to be adopted by him, on the face of her petition .shows that she had no such interest in the probate of the will as entitled her to institute suit to contest it, since, if the will is set aside, she could have no possible interest in the estate, unless the adoption was also set aside, and that could not be done by the circuit court of Missouri; and the court was, therefore, authorized to dismiss the will contest upon her motion.</p> <p>4. -: -: -: Limitation. Where the petition filed in the circuit court to contest, the will showed on its face that, if the will were set’ aside, the property would go entirely to certain named adopted children and that therefore the contestant, a sister of testator, could have no possible interest in the estate, and was dismissed, an amended petition filed two years thereafter, from which such allegations of adoption are omitted, is too late, and is properly stricken from the files, since at that time the Statute of Limitations had run against a new contest.</p> <p>5. -: Judgment of Dismissal:■ Sufficient. Plaintiff in the will contest, hy her attorney, filed this memorandum: “Now comes plaintiff, by her attorney, and dismisses this suit at her costs.” On the same day this order was entered upon the record: “Upon motion of plaintiff, and hy consent of defendants, it is ordered by the court that the following memorandum be entered of record: ‘On motion of plaintiff, by attorney, this cause is to he dismissed at plaintiff’s costs.’ ” Held, that, though informal, the judgment of dismissal was sufficient.</p>

Louis City Circuit Court. — Mon. Matt G. Reynolds, Judge. (1) Plaintiff’s instruction No. 2 is erroneous in that it assumes plaintiff was injured, and that she suffered mental and physical pain as a result thereof. These matters were disputed issues of fact and should have been submitted hypothetically to the jury. Plum-mer y. Milan, 70 Mo. App. 598; Evans v. Joplin, 76 Mo. App. 22; Fullerton v. Fordyce, 121 Mo. 13; Freeman v. Railroad, 95 Mo. App. 104.

Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge. (1) 'The words “any person interested in the probate of any will” are to he taken in their plain, ordinary and usual sense, and hence, any person who has a direct, legally ascertained and existing pecuniary interest either under the devolution under the will, or descent by operation of law, in the estate of a decedent such as would be impaired or defeated by the establishment or rejection of the will, is a person…

— Ron. Hermann Brumback, Judge. The court committed error in granting the plaintiff a new trial. The plaintiff by evidence introduced in chief by several witnesses, undertook to show that his married life was proper and correct.