Volume 249 — Missouri Reports

— Hon. Thomas J. Seehorn, Judge. (1) Ordinance 8316 of Kansas City, which is tlie foundation of this proceeding, is void, because it attempts to substitute the judgment- of the common council for that of the jury as to property values, damages and benefits, and offers to the jury an inducement to return a verdict for less than the value of the property taken and damaged.

<p>1. TAX SALE: Invalid: Judgment for Taxes Paid. A plaintiff, ■who brings suit to redeem land from an invalid tax sale or to have the tax deed canceled and set aside, under the statutes must pay the taxes paid by defendant before he is entitled to judgment.</p> <p>2. -: -: -: Not Pleaded. The trial court is under no legal obligation to render judgment for the amount of taxes a defendant paid for the land at the illegal and invalid tax sale, where he sets up no claim thereto in his answer to plaintiff’s petition to set aside the sale and cancel the deed; but where plaintiff made tender of the taxes, both in his petition and at the trial, and the amount is definitely known, the Supreme Court, on defendant’s appeal, will modify the judgment by rendering judgment in his favor for the amount of taxes paid by him and by declaring the same a lien on the land.</p>

Louis Court of Criminal Correction. —Hon. V. H. Falkenhainer, Judge. (1) The State, in the exercise of its undoubted police powers, had the right to, and did, enact a law forbidding the- keeping open, within the State, of grocery stores, on the first day of the week, commonly called Sunday. R. S. 1909, sec. 4804; St. Louis v. DeLassus, 205 Mo. 578; State v. Campbell, 206 Mo. 579.

<p>1. MANDAMUS: When Available: Inadequate Remedy. Unless ' another remedy is fully adequate, a writ of mandamus will issue; and whether the other remedy is adequate is a question appealing to the judgment and discretion of the court when the circumstances of the case are laid before it.</p> <p>2. -:-:-: Appeal: Return Adjudged Insufficient. Where the circuit court has adjudged a sufficient return of service of process insufficient to give it jurisdiction over the persons of defendants, and the facts of the return are all admitted or established by record matters, an appeal, after judgment of dismissal, is not a full and adequate remedy, and plaintiff is entitled to mandamus from the appellate court.</p> <p>3. -:-: Refusing to Entertain Jurisdiction: Adjudging Process Insufficient. Where a circuit court refuses to proceed with a cause, because the court was of the opinion that- it did not have jurisdiction of the cause or of the parties, mandamus will issue from the Supreme Court to compel it to proceed. If the court adjudged the return of service of process to be insufficient to bring defendants into court, and refused to entertain jurisdiction and proceed with the cause and made that ruling upon a preliminary objection, and the facts touching the return stand admitted, the question of the sufficiency of the return then becomes purely a question of law, and plaintiff is entitled to a preliminary writ of mandamus, and on a hearing, if the return is adjudged sufficient, the writ will be made permanent, requiring the court to proceed to judgment on the merits.</p> <p>4. -: Defendants Not Made Parties: Right to Stop Proceeding After Writ Made Permanent. Where, upon the application of plaintiff, a writ of mandamus to proceed to judgment on the merits has issued to the circuit court, which had held that the return of service of process was insufficient to bring defendants into court, it would be a novel ruling to hold that the defendants can by their writ of prohibition prohibit the circuit court from carrying out the mandate of the appellate court in the mandamus case, on the sole ground that they were not made parties to the mandamus proceeding in the appellate cotirt. Where the judge of the circuit court declines to act in a matter wherein he should act, he is the only necessary party respondent to the mandamus suit to compel him to act, although the State proceeds upon the information and to the use of one of the parties to the action as relator.</p> <p>5. -: -: -: Estoppel: Acting for Judge in Mandamus. Where the judge, who was the respondent in the mandamus suit, was, in his return and on the hearing ■ of the information, represented by the counsel of the defendants in the circuit court, the defendants were real parties to the mandamus suit, though not parties of record, and are estopped by the judgment in the mandamus case to further call that adjudication in question. A party to a proceeding may be bound by the judgment therein without being a party of record; if his counsel appears for the respondent in a mandamus suit, he is hound by the judgment therein.</p> <p>6. -: -: Application for Writ Made After Expiration of Term. A writ of mandamus may issue to the circuit court to proceed to try a case on its merits although the term of the circuit court had expired before the mandamus case was brought. The right of the Supreme Court to issue such an order is determined by the Constitution, and is not restricted or hampered by the statute. The ruling applies to defendants who were not made parties of record to the mandamus suit brought in the Supreme Court, which issued its writ directing the judge of the circuit court, who had adjudged the return of service of process insufficient to bring defendants into court, to proceed to judgment on' the merits, although application for the writ of mandamus was not made until after the term of the circuit court had expired. The circuit court having refused to do what it should have done at a time when it could have acted, the Supreme Court has power under the Constitution, by its writ of mandamus, to compel the circuit court to hear the case on its merits, although the term of the circuit court had expired before timely application for the writ was made.</p>

— Ron. H. B. Sham, Judge. (1) The court erred in admitting evidence of the Vinson trouble. Defendant had no connection with it, and was not present when it occurred. Deceased had no connection with it and was not present when it occurred. It bore no relation to the crime, and was not relevant to the issues involved.

<p>1. PROHIBITION: Motion by Person Not Party: No Notice. Where suit was brought in the circuit court by stockholders of an insurance company, praying for an injunction and asking for the appointment of a receiver, and a receiver was appointed, and before the company appeared, a writ of prohibition against the judge was applied for, and issued by the Supreme Court, and an order was made restoring the status quo, and thereupon the injunction was dismissed, a motion thereafter filed by the receiver in the Supreme Court, without notice, asking for an order for a return of the properties of the company to him, or the payment of a sum sufficient to pay his expenses and costs, in case it be held that the preliminary rule in prohibition was improvidently made, will be stricken from the files — first, because no notice was given, and, second, because movent is not a party to the prohibition suit.</p> <p>2. -: Dismissal of Circuit Court Case: Costs: Moot Case. Where plaintiffs, after the preliminary writ in their suit of injunction was issued and a receiver was appointed and defendants had applied for and obtained from the Supreme Court a preliminary writ of prohibition prohibiting the judge of the circuit court from proceeding further in the cause and restoring the status existing at the time the injunction was brought, voluntarily dismissed their suit in the circuit court and final judgment was entered, the prohibition suit becomes a mere moot case, involving at best only the undisposed of question of the taxation of costs in the lower court, and will be dismissed.</p>

— Hon. B. G. Thurman, Judge. (1) The petition in this ease, in one count, attempts to state a cause of action both under Sec. 5425 and 5426, R. S. 1909, and for this reason appellant's demurrer and motion to elect should have been sustained. Casey v. Railroad, 205 Mo. 72Í; Peters v. Railroad, 150 Mo. App. 721; King y. Railroad, 130 Mo. App. 368. (2) It is the duty of the section men to look out for the approach of trains and for their own safety while on or near the track.

— Hon. Charles D. Stewart, Judge. (1) This is not a case where the property is conveyed for charitable purpose leaving the courts to say how far the title to the property is restricted by its having been donated for that purpose. The grantor conveyed the property by warranty deed and by a-clause in the deed, specified the restriction he placed upon the transfer of the title and it is this clause the court is called upon to construe.

•Appeal from Butler Circuit Court. — Hon. Jesse C. Sheppard, Judge. Plaintiffs plead that they are “owners in fee” of the 160 acres of land in controversy; and but for the answer this would be an action at law. But the answer pleads an equitable defense, to-wit, laches and estoppel, and therefore converts this action into a suit in equity. Actions under section 650 are either legal or equitable, depending upon the issues raised by the pleadings.

— Hon. W. N. Evans, Judge. (1) The defendants’ remedy in this case was in a form of a petition to review judgment under sections 2101, 2103 and 2104, and they signally failed to meet the requirements of that statute for they do not allege in their petition the existence of the facts set forth in section 2101, and they also fail to allege that the petition is untrue in some material matter, and they fail to state in what particular the petition is untrue on which the judgment…

Louis City Circuit Court. — Eon. Robert M. Foster, Judge. (1) No formal pleadings are required iii the prosecution before the probate court of demands against the estates of deceased persons; but the requisites for exhibiting, presenting and proving demands are jurisdictional, in the absence of any of which neither the probate nor successive courts obtain jurisdiction over the cause or person. Britian v. Fender, 116 Mo. App. 96; R. S. 1899, sec. 200.

Louis City Circuit Court. — Ron. William M. Kinsey, Judge. The trial court erred in granting plaintiff a new trial on the ground error was committed in rejecting evidence offered by plaintiff, because: (1) Witness O’Loughlin was not qualified to give an opinion with respect to the'Speed of the car.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. (1) The court erred in allowing Dr. McElwee to testify, over defendant’s objections, that he ascribed the condition of plaintiff’s hip to an injury she had received in being thrown from the street ear, thereby permitting him to invade the province of the jury.

<p>APPELLATE JURISDICTION: Suit Based on Statute: Constitutionality. Where the vital point in plaintiffs petition for damages for personal injuries is based on the statute, and plaintiff’s right to recover does not raise a construction of the statute that involves its constitutionality, it is defendant’s duty, if it wishes to rely upon the unconstitutionality of the statute, to raise the point in its answer; and if it fails to do that, it is too late to inject a constitutional question into the case by instructions and the motion for a new trial; and if the suit proceeds to a verdict for plaintiff for $3000, the Court of Appeals has jurisdiction of the defendant’s writ of error.</p>

— Hon. Samuel Davis, Judge. (1) The court officer is presumed by the law to perform bis engagements and duties. Agan v. Shannon, 103 Mo. 661; Lenox v. Harrison, 88 Mo. 491. (2) Could the sheriff, at his said sale, disregard the order of the circuit court, and sell only so much of the land as he was directed to sell by the attorney for plaintiffs? The answer to this question must be in the negative, even though all the parties to the suit had so agreed.

— Hón. John G. Park, Judg'e. (1) There is no evidence sufficient to sustain either specification of negligence. (a) Excessive speed, no credible evidence, contrary to physical facts, not proximate cause, contributory negligence. 3 Cham-berlayne, Evidence, sec. 2086; Muth .v. Railroad, 87 Mo. App. 434; Burge v. Railroad, 148 S. W. 932; McCreery v. Railroad, 221 Mo. 18; Morkawitz v. Railroad, 186 Mo. 350; Moon v. Railroad, 141 S. W. 870; Marsh v. Railroad, 104 Mo.

— Row. Francis H. Trimble, Judge. (1) The marriage contracts were both, void for inadequacy of consideration, and because on their faces they only provided for her during his life. For the latter reason they were void as against public policy. Moran v. Stewart, 173 Mo. 207; Mowser v. Mowser, 87 Mo. 437.

Quo Warranto. (1) Whether we take the phrase “term of office” in its ordinary sense, or in its technical import, it means one and the same thing; “A fixed and definite period of time.” State ex rel. v. Stone^treet, 99 Mo, 372; State ex inf. v. Williams, 222 Mo. 278. In State ex rel. Tilley v. Ford, 41 Mo.

— Eon. Joseph A. Guthrie, Judge. (1) The theory upon which local assessments for improvements are made in this State is that a special and peculiar benefit is conferred upon the property assessed different from that conferred upon the general public. It follows as a necessary corollary of that proposition that the assessment cannot exceed the special benefit.

<p>1. MOTION FOR NEW TRIAL: Judgment Modified: Appeal. The fact that a judgment has been modified in a matter not contended for in the motion for a new trial, does not necessitate the filing of another motion for a new trial in order to preserve for appeal the points embraced in the original motion.</p> <p>2. DIVORCE: Alimony: Annual or In Gross: Appeal. A judgment of the circuit court allowing alimony at the rate of $6000 a year while the divorced woman should remain unmarried, is modified so as to award $100,000 alimony in gross — the husband’s wealth reaching beyond a million dollars, but consisting mainly of stock in close corporations, controlled by those who might become inimical to the divorced woman.</p>

— Hon. Nat M. Shelton, Judge. Defendant’s plea to the jurisdiction should have been sustained. There was no waiver, by entry of appearance and the filing of an application for a change of venue, before this plea to the jurisdiction had been passed upon, as there was in the Julian and Cook cases.

Louis City Circuit Court. — Hon. Matthew G. Reynolds, Judge. (1) A master’s duty to use ordinary care to provide suitable appliances and a safe place to work is limited to so furnishing them for the performance of the functions for which they are intended. Rutledge v. Railroad, 110 Mo. 312; Morrison v. Fibre Co., 70 N, H. 406; Durgin v. Munson, 9 Allen, 396, 25 Am.' Dec. 770; Kern v. DeCastro, etc. Co., 125 N. Y. 50; York v. Railroad, 117 Mo; 405.

— Hon. Thomas J. Seehorn, Judge. (1) There can be no violation of the belt guarding statute until after notice by the factory inspector. R. S. 1899, sec. 6446; Williams v. Railroad, 233 Mo. 682; Foley v. Machine Works, 149 Mass. 297; Borck v. Bolt & Nut Co., Ill Mich. 133; Kerr v. Brass Mfg. Co., 155 Mich. 191.

G. A. Mosmcm, Judge. (1) The pretended fee contract was inadmissible in evidence and should have been excluded from the consideration of the case. White v. Tolliver, 20 So. 97; Dickinson v. Bradford, 59 Ala. 581; Ryan v. Ash-ton, 42 Iowa, 365; Nesbit v. Lockman, 34 N. Y. 167; Place v. Haywood, 117 N. Y. 497; Bingham v. Sheldon, 91 N. Y. Supp. 917; Greenfield’s Estate, 14 Pa.

— Hon. Herman Brumbado, Judge. (1) Plaintiffs made a prima-facie case on the evidence introduced. Ladd v. Williams, 104 Mo. App. 397. It is error to direct a verdict for the defendant even where only nominal damages would he recoverable under the evidence. Owen v. O’Reilly, 20 Mo. 603.

<p>1. PARTITION: Allowances of Probate Court: Notes and Mortgages as Additional Security: Res Adjudicata. Where claims were allowed against decedent’s estate by the probate court, and directed to be paid in the interlocutory judgment in partition, and after the real estate was sold in partition the claimant took notes from the purchaser secured by deeds of trust on the land so sold, a subsequent judgment setting aside the sale in partition and adjudging the notes and deeds of trust invalid and void, did not affect the validity of the original claims, if in fact they were not merged into the notes and deeds of trust, hut the claimant held on to and did not surrender them, but only took the notes and deeds of trust from the purchaser as additional security. Being still valid, the court in a corrected interlocutory judgment in partition should allow them and direct their payment out of the proceeds of the sale of the lands.</p> <p>2. JUDGMENTS: Bounded by Pleadings: Res Adjudicata: Partition. Judgments cannot be broader than the issues made by the pleadings. Though the language of a decree setting aside a sale in partition may seem to indicate that a claim allowed against the estate was for naught held, yet if the issues made by the pleadings only attacked the notes and deeds of trust given by the purchaser to the claimant and the decree set them aside, it will not be held that such judgment of cancellation also set aside and for naught held the valid claim allowed and adjudged by the interlocutory decree therein. If the validity of the claim itself was not involved in the • decree setting aside the sale in partition, its validity is still open for consideration when the court comes to make a modified interlocutory decree.</p> <p>¿5. PARTITION: Cancellation of Final Judgment: Status of Interlocutory Judgment. Where the final judgment in partition approving the sale of the property, was attacked by the heirs by a separate suit in equity, charging it was obtained by fraud in its concoction, and that charge was sustained and the judgment set aside, the interlocutory judgment being left unaffected by the decree, the partition suit was still pending as if no final judgment had ever been rendered, and all the parties were left by the interlocutory judgment in possession of all the rights they would have under an interlocutory judgment in any other partition case. Being interlocutory it remained interlocutory, subject to correction and alteration, and no allowance _ or adjudication by it became res adjwUoata.</p> <p>4. -: Purchase of Interest by Trustee: Presentation of Deed: Fiduciary Relation. The presentation by the trustee under the will of deeds showing he had purchased the interests of two heirs does not alone entitle him to participate in the proceeds of the estate. The fiduciary relation being shown, it devolves upon him to show the fairness of the transaction, the burden shifting to him to establish adequacy of consideration and that he did not take advantage of the devisees; and if the evidence shows that he obtained property worth $15,000 for $8,000, the deeds should be set aside, and he allowed a lien on their interest for the amount actually paid them, with six per cent interest.</p> <p>5. -: Trustee: Services. Where the evidence shows that the services of the trustee under the .will were worth $50 a month, the court should modify its original interlocutory decree in partition which allowed him $150 per month.</p> <p>'6.-: -: Advancement for Benefit of Estate. The trustee under the will should be repaid in the partition suit the money he advanced for the benefit of the estate. And where there was final judgment and sale, and he accepted a note from the purchaser, secured by a deed of trust on the land, and that sale is uprooted and the final judgment set aside as being obtained by fraud, the debt itself still exists, and should be allowed.</p> <p>7. -: Void Sale: Sale of Interest by Widow to Illegal Purchaser. The sale by the widow of her stock in the corporation organized to purchase the land at the partition sale, which was set aside for fraud, did not in law carry her title to the estate property.</p> <p>8. -: Estoppel: Officers of Corporation: Not Nominal Parties. The president and secretary of the corporation who were present and managed the defense for it in the suit by the heirs to set aside the final decree in partition and to divest it of all title to the real estate which had been conveyed to it as a result of that void sale, were so far privies in interest as to be bound by a judgment annulling the sale and divesting the corporation of the properties; and if in that suit they set up no claim in themselves to the interests of two of the heirs, but aided and abetted the corporation in claiming those interests, they are estopped to assert that they are the owners thereof.</p> <p>■9. -: Services of Employee of Tortfeasor. Where a corporation was a tortfeasor and as such wrongfully in charge of the estate, an employee of the corporation should not be allowed in the partition decree.for his services in managing the estate.</p> <p>10. -: Liens: Effect of Setting Aside Sale. Liens on the interest of heirs acquired, for money advanced, prior to the time the property was ordered sold under partition, should be allowed in the corrected judgment, although the final judgment and sale thereunder were set aside for fraud, and the title divested out of the corporate purchaser which had given notes for the amount of the debts and secured them by mortgages on the properties. And though these pre-existing liens were owned by the officers of the corporation, it was not inconsistent for them in the suit to set aside the partition judgment, to assert title in the corporation, and now say, after that title has been held to be invalid, that they should be given a lien on the interests of the heirs to whom they loaned the money - in the renewed partition judgment.</p> <p>11. -: Adjusting Equities: Breadth of Pleadings. In partition proceedings the court has wide latitude in the adjustment of all equities. If the answer of some defendants sets up that they are owners by purchase of the interests of certain heirs for money advanced, and the proof shows that they are not purchasers but only have liens on the interests of such heirs, their rights should be adjusted, even to the extent of requiring the pleading to be amended.</p> <p>12. -: Tortfeasor: Allowance. Where the tortfeasor in possession of the property tried to collect all the rents obtainable, and used the money in improving and caring for the estate, he will not be charged, in the final partition decree, with the reasonable rental value of the property, but only with what was actually received.</p>

--Son. Henry L. McGune} Judge. (1) The plaintiff, under his own statement, was guilty • of contributory negligence in attempting to cross the track directly in front of a moving locomotive approaching him in plain view. Loring v. Railroad, 128 Mo. 349; Moore v. Railroad, 176 Mo. 544; Hook v. Railroad, 162 Mo. 569; Vanback v. Railroad, 171 Mo. 338. Plaintiff assumed the risk of injury from moving cars and engines in the defendant’s railroad yard as a matter of law..

— Hon. Thomas J. Seehorn, Judge. (1) The court committed error in overruling the defendant’s demurrer to the evidence, and also committed error in refusing to grant the defendant’s instruction in the nature of a demurrer to the evidence. Eckert v. Railroad, 43 N. T. 502; Donahue v. Railroad, 83 Mo. 560; Morris v. Railroad, 148 N. Y. 182; Deville v. Railroad, 50 Cal. 383; Corbin v. Philadelphia, 7 A. M. Neg. Rep. 563; McManamee v. Railroad, 135 Mo. 440.

— Hon. John O. Park, Special Judge. (1) A deed will be construed to convey whatever interest or estate the grantor may nave in the land at the time of its execution, unless the deed shows the grantor’s intention was to pass a less estate or interest. Bray v. Conrad, 101 Mo. 331; 2 Devlin on Deeds. 849.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. Our code of civil procedure is mandatory and when the courts follow the law they adhere to the rules of pleading therein prescribed. If the ruling of the trial court in striking out the whole of defendant’s answer is correct then authority for such ruling will he found in our code. If no such authority can be found and if the ruling of the court is not bottomed on the code then unquestionably it is erroneous.

— Eon. Alonso D. Burnes, Judge. (1) The amended petition in this case is fatally defective.

— Hon. Alonso D. Burnes, Judge. (1) The reply of plaintiff admits appellant’s possession of said lands for and during thirty-five years next before the institution of tins suit. In said reply it is‘not alleged or claimed that defendant’s possession was of a character different from the possession of defendant as alleged in his answer.

<p>Appeal from St. Louis City Circuit Court. — Ron. , William M. Kinsey, Judge.</p>

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) A final judgment is such as disposes of the case (not necessarily the controversy) and leaves the parties powerless, to proceed further in that court. 23 Cyc. 665, 672; G-awtry v. Adams, 10 Mo. App. 29: (2) The appellant had a right to appeal from the judgment of the circuit court, dismissing the case. Sec. 2038, R. S. 1909; Stid v. Railroad, 211 Mo. 418; Thomas v. Elliott, 215 Mo. 603.

— lion. Henry M. Barney, Judge. (1) Section 6434, in so far as it applies to minors under the age of 16 years, was not repealed either expressly or by implication by the Act of March 20, 1907. Laws 1907, pi 86. (2) The general repealing clause of the Act of 1907 is a mere formal provision which adds nothing to the act itself, and if there is any repeal effected it is by implication. 26 Am. & Eng. Ency. Law (2 Ed.), p. 719; State v. Kessels, 120 Mo. App. 244.

— Hon. David H. Harris, Judge. The court erred in refusing to sustain defendant’s motion in arrest of judgment on the theory “that the information upon which the defendant was tried was not sufficient in law.” The information charged defendant with having ravished a female cild-. This allegation is not sufficient in law to sustain an information or indictment. Any material allegation in an information or indictment must be definite and specific. State y. Clinkenbeard, 135 Mo.

Louis City Circuit Court, — Mon. Wilüam M. Kinsey, Judge. (1) The funds of a building and loan association must be offered to the stockholders at a stated meeting without restriction as to the premium. Each stockholder must be afforded the opportunity of borrowing at the lowest rate he can in competition with other stockholders. The officers or board of directors have no right to fix by law or otherwise a minimum or maximum premium.

— Hon. John P. Butler, Judge. (1) Tire court erred in excluding legal and competent testimony offered by appellant, and by making its finding in favor of relator. Both the town of Car-rollton and appellant are bound by and governed by the provisions of ordinance 32. Under the provisions •of section 7 of said ordinance the defendant had a right to charge for a minimum service the rate that is charged for like services in North Missouri cities and towns.

Prohibition. (1) In order that the circuit court of Adair county might have jurisdiction of the person of Marie Dutcher, a resident of the city of St. Louis, by virtue of service upon her of the writ and petition in the suit wherein she and Harrington, a resident of Adair county, were named as defendants, it is necessary that the petition served npon her should state a joint liability as against her and the resident defendant Harrington.

Louis City Circuit Court. — -Hon. James E. Withrow, Judge. (1) The trial court erred in overruling the demurrer because of the defect of parties plaintiff. The State would be the only authorized plaintiff, yet the petition in no manner alleges that the State brings the suit or is plaintiff. E. S. 1909, sec. 10322; Patterson v. Temple, 27 Ark. 202; U. S. v. Dougherty, 7 Blatchf. 424.