Volume 250 — Missouri Reports

Transferred from St. Louis Court of Appeals. The court erred in excluding the testimony of the two physicians who assisted Dr. Elston in examining plaintiff and dressing his injuries at Corry Hospital. The plaintiff testified as to what took place at the hospital, going fully into the details. Dr. Phelps and Dr. Christie were present assisting Dr. Elston. The court permitted Dr. Elston to testify, but rejected the testimony of the assisting physicians.

— Hon. William H. Martin, Judge. (1) The charter and franchise constitutes a contract between the State and the Louisiana & Missouri River Railroad Company and its privies, that is, its lessee.- United States v. Railroad, 118 U. S. 327. That a legislative grant is a contract has been repeatedly ruled.

Louis City Circuit Court.-Hon. Robert M. Foster, Judge. (1) This court lias already held that the Wabash Railroad cannot operate its railroad in Collins street without practically monopolizing and confiscating said street to the use of said railroad company and that abutting property-owners are entitled to have such operation of said railroad in said street enjoined. Lockwood v. Railroad, 122 Mo. 86.

Louis Court of Criminal Correction.-Hon. Galvin N. Miller, Judge. (1) What a statute will imply is as much a part of a legislative enactment as though set forth in terms, and when a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others. 2 Sutherland’s Stat.

<p>1. USE: Execution: Married Woman. The Statute of Uses does not execute a use in a married woman, and she, therefore, cannot herself convey the legal title to land held in trust for her.</p> <p>2. -: -: -: Conveyance: Merger of Title. Land was placed in trust for X, a married woman, and the-heirs of her body. She gave those heirs her quitclaim deed to the land. Held, that the rights of the heirs were in no way’ affected by the deed. Nemo est fiaeris viventis; and there could be no merger of the remainder with the legal estate of the life' tenant, for she had none.</p> <p>3. -: Conveyance from Trustee: Taken with Notice: Limitations. One who, with knowledge of the trust, takes from a trustee a conveyance made in violation of his trust, becomes himself a trustee ex maleficio, and the Statute of Limitations does not run in his favor as against the cestui que trust.</p>

Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge. (1) The compensation of the office of circuit attorney prior to the Act of 1901, was $1000 in salary, $3000 in lieu of fees in felony cases, $1000 in lieu of fees in misdemeanor cases, and in addition thereto the circuit attorney was entitled to certain other fees in criminal cases.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) With, regard to the possible effect of the words printed and the language used and tbeir effect in the community it has been held that language used affecting a person, particularly in bis business or profession are actionable without special damage proven. Coal Co. v. Rose, 2 L. R. A. (N. S.) 743; Minter v. Bradstreet, 174 Mo. 44; Baldwin v. Walser, 41 Mo. App. 243; Johnson v. Dispatch Co., 2 Mo. App. 565.

— Hon. Lucian J. Eastin, Judge. (1) Private property cannot he taken or damaged for public use, without a literal compliance with the State Constitution, and all statutory requirements. Leslie v. St. Louis, 47 Mo. 474; Ells v. Railroad, 51 Mo. 200; Anderson v. Pemberton, 89 Mo. 61; Williams v. Kirby, 169 Mo. 628.

<p>1. BOARD OF TRADE: Trial and Expulsion of Members: Resort to Courts: Legal Rights in Original Controversy. The Supreme Court, upon an appeal from an injunction restraining a board of trade from proceeding to expel certain members because, it is alleged, they refused to submit a controversy to arbitration as directed by its constitution, is not concerned with the legal rights of the parties involved in the original controversy. That controversy merely evidenced the existence of a dispute within the purview of the constitution.</p> <p>2. -- — :--: Constitutional Powers of Directors: Ex Parte Action. While plaintiffs in becoming members of the Board of Trade agreed to observe its constitution, rules and bylaws, and agreed to be subject to fine, suspension or expulsion in case they violated that agreement, yet they.did not agree that the board of directors could exercise powers other than those conferred by the constitution, and while that board might try and punish members for failure to meet and discharge unquestioned obligations, it could not, ex parte, settle business controversies by resolution and on pain of expulsion exact compliance with such mandates.</p> <p>3. -: -: -: Estoppel. Members of a board of trade are not estopped to stand upon the express provisions of tbeir agreement, as set out in the constitution, rules and-bylaws of the board, by the fact that they have induced others in different matters to yield obedience to unauthorized orders of the board of directors.</p> <p>4. --: -: -: Circulating Slanderous Reports. Allegations in'a pleading in a suit in court, to-wit, that the board of directors of a board of trade has refused plaintiffs the right to arbitrate, that the members of the board were interested ’ in like controversies and therefore were attempting to pass on their own cases, and that the board was acting outside its constitutional authority, do not fall within the constitutional prohibition against “circulating false or slanderous reports relative to the business affairs of other members or relative to the officers, appointees and committees of the association.”</p> <p>5. -: -:--: Protecting Member’s Property Rights. The property rights incident to membership in the Kansas City Board of Trade entitle a member to resist expulsion and to resort to the courts to enforce his rights to retain such membership in case the tribunals within the board attempt to oust him in disregard of the constitution — and that is so despite a covenant in the constitution not to bring suit against an officer of the board on account of any transaction therein.</p> <p>6. -: -: Resort to Courts: Injunction: Prematurely Sought. The board of directors of the Kansas City Board of Trade has power to try members against whom complaints have been lodged, and, in case of conviction, has discretion to fine, suspend or expel the offender. It is also within the discretion of the board of directors whether a member shall be punished for the misconduct of the corporation which he represents. Therefore, where the complaints were filed before the board against the plaintiffs, for' the failure of plaintiffs’ corporation to pay for a car of grain, and the plaintiffs, before trial before the directors, applied to the courts for an injunction to prevent their expulsion, it is held that plaintiffs have no right to injunction, because their application is premature.</p>

— Eon. Edward E. Porterfield, Judge. (1) The information sufficiently charges the offense of murder in the first degree. Held: whereby the injury is inflicted, is not material; and even if the same were material under the common law rules of pleading, the defect is cured by the sweeping provisions of Sec. 5115, R. S. 1909, which declares that “no indictment or information shall he deemed invalid for any . . . defect or imperfection which does not tend to the…

Francois Circuit Court. — Eon. Peter E. Ruck, Judge. Held: that where a witness was related to a defendant or under his influence or control, and it was shown that such witness had an opportunity to know some material facts in the case, and was either ■not subpoenaed by the defendant, or if subpoenaed, not placed on the stand by him, and that fact was referred to by the prosecuting attorney…

Charles Circuit Court. — Eon. B. E. Dyer, Judge. (1) The instruction 13 is erroneous in that it authorizes the jury to find the appellant guilty of murder in the second degree without requiring the jnry to find that appellant intentionally killed the deceased. State v. Wieners, 66 Mo. 23; State v. Shock, 68 Mo. 552; State v. Elsey, 201 Mo. 572; State v. Harris, 76 Mo. 361; State v. Minor, 193 Mo. 597.

— Hon. Bernard H. Dyer, Special Judge. (1) Notwithstanding his plea of guilty, a defendant is entitled to his appeal or writ of error, and if no crime is charged in the information, then none is confessed by pleading guilty thereto. The only effect of such a plea is to admit the truth of whatever is sufficiently charged. State v. Levy, 119 Mo. 434; State v. Rosenblatt, 185 Mo. 114; State v. Kelley, 206 Mo. 685.

— Hon. John T. Moore, Judge. The court permitted the State in rebuttal to introduce Katie Ashinhurst and elicit from her testimony of specific crimes and acts of wrongdoing in disregard of the well known and long established principle of law that this kind of testimony is not admissible for any purpose in a case of this kind.

— Hon. W. S. G. Walker, Judge. (1) If it be granted tbat the home of defendant’s mother, after the separation, followed the home of deceased, still, the deceased, having established his home at a place other than the place where the mother lived, and where he was killed, could not claim the mother’s home as his home, because he had established his home elsewhere.

— Hon. W. N. 'Evans, Judge. (1) The court erred in overruling the motion to quash the information, as said information was not verified by the prosecuting attorney nor by the prosecuting witness, nor by any one who would be a competent witness in said cause, neither was there an affidavit lodged .with said information. R. S. 1909, sec. 5057; State v. Brown, 181 Mo. 224; State v. Bonner, 178 Mo. 430.

— Hon. John T. Moore, Judge. The alleged offense in this case is a felony, and all felonies must be charged to have been feloniously done. In this case the word “feloniously” nowhere appeared in the information till the prosecuting attorney was permitted to insert the word “feloniously, ’ ’ and that after the jury were impaneled. Defendant’s motion in arrest should have been sustained.

— Ho». Arch B. Davis, Judge. (1) In cases of conflicting affidavits, where the credibility of the proposed new witness is involved, the court should not assume the- functions of a jury, hut should grant a new trial. 14 Ency. PL & Pr., pp. 794, 795, and cases cited under note 2, p. 795.

<p>1. INSTRUCTIONS: Convicted of Lower Degree of Crime: Renders Harmless Error in Instruction on Higher Degree. Conviction of a lower degree of a crime renders harmless error in an instruction as to a higher degree.</p> <p>2. EVIDENCE: Declarations of Deceased: Not Admissible: Mere Hearsay. In the trial of a woman for the killing of her husband it was proper to exclude testimony of statements of the murdered man made before the shooting, to the effect that he had forced his wife, at the point of a pistol, to write a letter incriminating herself. The State sustains no such relation to the party injured as will make his declarations admissible against the State when such declarations are not admissible as dying declarations or as a part of the res gestae.</p> <p>3. -: Threats and Violence of Deceased Toward Defendant: Admissible Unless Cumulative. In trials involving the question of self-defense the better rule is to allow all evidence of threats or violence of deceased toward defendant, limited only by a very sound discretion, but the rejection of evidence merely cumulative will not work a reversal.</p>

— Hon. E. M. Dearing, Judge. On October 31, 1911, defendant filed his affidavit for and was duly granted an appeal to this court. He did not appeal as a poor person, but entered into an appeal bond and has been ever since continuously out on bond. The record proper further shows two orders granting' time for the filing of a bill of exceptions, but it does not show when the bill of exceptions was filed or that it was ever duly filed.

— Ron. John T. Moore, Judge.. (1) ' There was ample evidence to warrant the verdict returned by the jury. The contention that the verdict was against the evidence is without any merit and does not deserve the consideration of this court. (2) That the verdict of the jury is against the law as declared in the instructions given by the court is a contention that could not be seriously- argued in this case and was only raised by appellant as a matter of form.

— Eon. Edward E. Porterfield, Judge. (1) The information filed herein was insufficient in that it was illegal and void. State v. Fink, 186 Mo. 58; State v. Lackey, 230 Mo. 714; State v. Pollack, 105 Mo. App. 278; State v. Stowe, 132 Mo. 208; State v. Barbee, 136 Mo. 440. (2) The court erred in allowing the prosecuting attorney to ask witness if he had not approached another party to bribe the prosecuting attorney.

<p>1. EVIDENCE: Reviewed on Appeal. The evidence held sufficient to support a conviction for assault with intent to rob.</p> <p>2. ASSAULT WITH INTENT TO ROB: Evidence: Of Another Crime Admitted as Res Gestae. Upon a trial for assault with intent-to rob a street car conductor, the conductor testified that he saw defendant put his hand in the pocket of a passenger, whereupon he (the conductor) asked if anybody had lost anything, and then defendant struck him in the face and tried to pull his money changer from his coat. Held, that the evidence of defendant’s attempt upon the passenger was admissible as part of the 'res gestae.</p>

— Hon. Ralph ' S. Latshaw, Judge. It was error to permit State to bolster up tbe character of deceased, when no attack had been made upon his character.

Pike Circuit Court. — Hon. B. H. Dyer, Judge. (1) The court erred in refusing’ defendant’s application for a change of venue. This is a civil proceeding within the meaning of the change of venue law. R. S. 1909, secs. 1927-31, 10209; State ex rel. v. Riley, 203 Mo. 175.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. On December 9, 1910', defendant filed his affidavit for and was duly granted an appeal to this court. He did not appeal as a poor person, but entered into an appeal bond and has been ever since continuously out on bond. Later, on February 2,1911, and during the December term, 1910, of the circuit court of-the city of St. Louis, defendant was granted time in which to file bis bill of exceptions.

<p>1. BILL OF EXCEPTIONS: Not Reviewable When Motion for New Trial not in Record. Where the bill of exceptions shows a direction to the clerk to copy the motion for a new trial, but the motion is copied neither in that part of the ’record designated as the bill of exceptions nor in that portion of the transcript known as the record proper, there is nothing before the Supreme Court for review except the record proper.</p> <p>2. SWEARING JURY: Not Shown by Record. Where the record proper fails to show that the jury was sworn to try the cause, the case will be reversed and remanded.</p>

— Hon. Ralph $. Latshaw, Judge. The evidence is not sufficient to sustain the verdict and judgment of the court, (a) The evidence fails to establish the corpus delicti. Wills on Circum. Ev. (Ed. 1905), p.^297; State v. Francis, 199 Mo. 671; State v.. Johnson, 209 Mo. 346; State v. Jones, 106 Mo. 313; State v. Knows, 90 Mo.

<p>1. NO BILL OF EXCEPTIONS. Where no bill of exceptions is filed, there is nothing before the court except the record proper, and if that is free from error the judgment will be affirmed.</p> <p>2. INDICTMENT: Manslaughter in Fourth Degree: Careless Driving of Automobile. An indictment charging manslaughter in the fourth degree, death having resulted from the careless driving of an automobile, is held good upon the authority of State v. Watson, 216 Mo. 424.</p>

Charles Circuit Court. — Eon. James D. Barnett, Judge. (1) Under the pleading and testimony, plaintiff’s interest was intentionally and fraudulently attempted to be disposed of by the directors of defendants, for their and their associates’ benefit and profit, in the Dardenne Shooting Club; that in mating this deed the result if it is permitted to stand, is to benefit these directors and their associates and injure the plaintiff.

— Now. N. D. Thurmond, Judge. (1) There was no competent testimony tending to prove that the respondent had any right or interest in the land asked to be partitioned, and especially no right to the present possession of hex share in severalty, which is necessary for the party to have before they can maintain partition. 21 Am. & Eng. Ency. Law, 1151. (a).

— Hon. D. H. Eby, Judge. (1) The Act of 1895 (Laws 1895, p. 194, being Sec. 7030, R. S. 1909) is unconstitutional. Constitution, ¿rt. 4, sec. 28>. Tbe act consists of but one section.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. (1) Even though defendant’s instruction 6 was not within the issues tendered by the answer, nevertheless the facts upon which it was predicated having been developed in plaintiff’s own evidence, it was proper'to give it. Sissel v. Railroad, 214 Mo. 526; Pirn v. Transit Co., 108 Mo. App. 716; Hill v. Drug Co., 140 Mo. 438; Fire Brick Co. v. Railroad, 21 Mo.

<p>Appeal from Louisiana Court of Common Pleas.— Eon. D. E. Eby, Judge.</p>

Louis City Circuit Court. — Hon. W. B. Homer, Judge. (1) Evidence of otlier accidents from the same cause is not admissible in a suit against the city for damages on account of an alleged defect in a sidewalk. Groble v. Kansas City, 148 Mo. 475; Smart v. Kansas City, 91 Mo. App. 594; Edwards v. Paving Co., 92 Mo. App. 226; Stout v. Columbia, 118 Mo. App. 444; Calcaterra v. Iovaldi, 123 Mo. App. 352.

— Hon. Hopkins B. Slain, Judge. (1) The second lien notice introduced by plaintiff was not admissible because it was a self-serving document made by plaintiff contradicting a former written admission relating to the very issue of fact on trial. Pearsall v. McCartney, 28 Ala. 110; Taylor v. Brown, 4 Atl. (Md.) 888; Edwards v. Osman, 19 S. W. (Tex.) 868; Roberts v. Tennell, 3 T. B. Mon. (Ky.) 249; Clark v.- Huffaker’s Adm., 26 Mo. 269.

— Ron. R. Steele Ryors, Judge. (1) The petition follows tlie language of the statute, and is sufficient in form. Sec. 1013, R. S. 1899; sec. 3026, R. S. 1909; State ex rel. v. Land Co., 97 Mo. App. 226; Sec. 3028, R. S. 1909. (2) The second ground of the demurrer does not raise a constitutional question: (a) Such question cannot be raised by demurrer. Sec. 1800, R. S. 1909; State v. Rich, 20 Mo. 393.

— Hon. F. G. Johnston, Judge. (1) The court erred in refusing the demurrer asked at the close of the proponents’ evidence, (a) There was no proof of testamentary capacity on- the part of the alleged testator as required by the statute, E. S. 1909, sec. 535; there was' no proof of execution of the will.

— Hon. W. H. Martin, Judge. The court erred in finding the issues for the plaintiff. The plaintiff offered no evidence tending to sustain the contract pleaded or warranting the decree rendered. Walker v. Bohanan, 243'Mo. 119; Forrester v. Sullivan, 231 Mo. 373; Grantham v. Gossett, 182 Mo. 671; Asbury v. Hicldin, 181 Mo. 672; McElvain v. Mc-Elvain, 171 Mo. 257; Kinney v. Murray, 170 Mo. 700; Steele v. Steele, 161 Mo. 573.

Louis City Circuit Court. — Hon. Charles C. Allen, Judge. (1) The court- erred in refusing the instructions offered by defendants in the nature of a demurrer to the evidence at the close of plaintiff’s case and at the close of the whole case. Buesching v: Gas Light Co., 6 Mo. App. 85; Larkin v. O’Neil, 119 N. T. 221; Kean v. Schoening, 103 Mo. App. 77. (2) The court erred in permitting the plaintiff to introduce evidence to the effect that children played in the alleyway.

— Hon. F. G. Johnston, Judge. (1) When a servant has a choice of two ways of performing his labor, one safe, and the other risky, which latter he voluntarily chooses, such choice is contributory negligence precluding recovery for the resulting injury. Montgomery v. Railroad, 109 Mo. App. 88; Moore v. Railroad, 146 Mo. 572; Smith v. Box Co., 193 Mo. 715; Pauck v. Beef.Co., 159 Mo. 639; Holmes v. Brandenbaugh, 172 Mo. 66; Anderson v. Box Co., 103 Mo.

Louis City Circuit Court. — Hon. James E. Withroiv, Judge. (1) It was error on the part of the court to sustain the objection of the respondents to the introduction of the certified copy of the grant to Calve. Secs. 6302, 6341, R. S. 1909; 'Wright v. Thomas, 4 Mo. 575; Finn v. Public Schools, 23 Mo. 5701, 39 Mo. 59!.

<p>1. EXTENDING CITY LIMITS: Sec. 5752, R. S. 1899: Constitutional Despite Invalid Proviso. Section 5752, R. S. 1899, providing that “the mayor and council of such city [of the third class], with the consent of a majority of the legal voters of such city voting at an election therefor, shall have power to extend the limits of the city over territory adjacent thereto . . . in such manner as in their judgment and discretion may redound to the benefit of the city:” is valid and constitutional despite an unconstitutional proviso, to-wit: “Provided, however, that all agricultural and pasture lands in tracts in excess of forty acres in such city shall he exempt from taxation for city purposes until said lands are laid off into lots and blocks and plats of the same filed for record.”</p> <p>2. -: Ordinance: Reasonableness: Presumptions: Burden of Proof. Since it is within the statutory power of a city council to provide by ordinance for the extension of the city limits, an ordinance for such extension is presumed to be reasonable and valid until that presumption is overthrown by evidence which clearly shows the contrary, and courts will not look closely into mere matters of judgment where there may be a reasonable difference of opinion. . The burden is upon those who seek to enjoin the operation of such an ordinance to prove facts clearly establishing its unreasonableness.</p> <p>3. -:--: -: Evidence. By the census of 1910 the city of Joplin was found to have over 32,000 inhabitants, and in the eighteen years preceding 1908 had increased in population nearly two hundred and fifty per cent. In that year the city limits were extended so as to bring into the city about 2100 acres, approximately one-third of which had been platted. The plaintiffs seek by injunction to defeat the .extension, and one of them estimated the population of the extension at about 300 families, but the evidence as to the distribution of this population is meagre. Whether that part of the original city lying adjacent to the extension is a residential, business or manufacturing district is not shown. Indeed there was little or no evidence as to whether the lands were needed for city purposes, or as to how, by whom or for what purposes they were held and whether the unplatted lands are to be brought on the market as town property when they reach a value satisfactory to the owners. Neither the value of the lands included nor the extent to which the value depended upon their adaptability for city purposes is discoverable from the record, nor does it appear that they are not needed to supply places for the abode and business of residents of the town. Held, that, in such circumstances, the extension cannot be defeated as unreasonable.</p> <p>4. -: -: Fraud of Council: Evidence. Evidence that in the six months since an extension of city limits, lights, sewers, police, etc., had not been provided in the annexed district is relevant as supporting an allegation that the extension worked a fraud, but where, as in this case, the evidence indicates that plaintiffs and others kept up a continuing agitation against the extension both before and after the election, it better accords with the presumption of right action to ascribe the delay to the public agitation than to fraud on the part of the city council.</p>

— Eon. John G. Park, Judge. (1) The court erred in submitting the case to the jury upon the pleadings filed herein. * The petition wholly fails to state a cause of action against the appellant in the following respects: (a) It wholly fails to allege sufficient facts to warrant the conclusion that the respondent became or was a passenger upon appellant’s cars, (b) It wholly fails to allege any fact evidencing that appellant intended to receive or extended any invitation on…

— Hon. David H. Eby, Judge. (1) The court erred in finding for the plaintiff in the sum of $400. Plurr v. Eailroad, 141 Mo. App. 217; Stevens v. Eailroad, 157 Mo. App. 656.

— Now. Joseph J. Williams, Judge. There was no evidence of fraud on the part of James Byrne, as charged in the amendment made to plaintiff’s petition, and the court erred in giving instruction 5. McAtee v. Yalandingham, 75 Mo. App. 53; McQuillin’s Instruction to Juries, p. 67, par. 95. (2) The amount given to Alice Byrne was a charge on the real estate devised to James Byrne. Murphy v. Carlin, 113 Mo. 113.

— Eon. Robert Q. ° Ranney, Special Judge. (1) The court erred in rejecting competent evidence offered by defendants. The defendant H. H. O’Kelly offered a warranty deed to the land in controversy, made to him on the 26th day of January, 1909, by one John J. Cormack, consideration $500; duly acknowledged and recorded.

— Hon. Lucian J. Eastin, Judge. (1) The sole issue tried under cross-hill was one of'mistake in making both deeds. “To justify the reforming of an instrument the pleading must allege, and the evidence must show, that a mistake was made, and that said mistake was mutual.” Henderson v. Beasley, 137 Mo. 199; Adkins v. Tomlinson, 121 Mo. 487.

<p>1. APPELLATE JURISDICTION: Constitutional Question: Liability Under Statute of Another State. The Supreme Court has jurisdiction “in cases where the validity of a treaty or statute of or authority exercised under the United States is drawn in question;” but the validity of no such treaty or statute or authority is drawn in question in a suit by the creditors of a bank in Colorado’, which has there been adjudged insolvent, against stockholders in this State, seeking to hold them liable for the bank’s debts, under a statute of that State, which makes stockholders of a bank liable for its debts in double the par value of the stock held by each.</p> <p>2. -:--: How and When Raised: General Rules. In order to bring an appeal within the jurisdiction of the Supreme Court on the ground that “the case involves the construction of the Constitution of the United States or of this State,” certain precedent conditions must be met: first, it must appear that a constitutional construction was essential to a determination of the ease; second, it must appear that a constitutional question was raised in the trial court, and ruled on to the disadvantage of appellant; third, the constitutional question cannot be injected into the case for the first time by drgument or brief of counsel; and, fourth, it must be raised 'timely in the trial court and kept alive in the course of orderly procedure — in the pleadings, if due to be found there; if not, then at the first opportunity; and, sometimes on the rulings on the admission of evidence, but in that case should be kept alive in the motion for a new trial and (if necessary) in the instructions; and, in rare cases, it may be raised for the first time in the motion for a new trial or in the instructions.</p> <p>3 -¡ -; Not Apparent from Record. Although there was an argument of counsel for defendant wherein it was suggested that, if the court admitted the decree of a Colorado court in a suit hy creditors of a hank against all stockholders, seeking to hold them for its debts under á statute which makes them liable in double the par value of thoir stock, in which defendant was sued but not served with process and which found against her and all other stockholders in the amount of fifty-three percent of the par, value of their stock, it would be to hold her without due process of law under specified sections of the Federal and State Constitution, yet if there were many other suggestions for the exclusion of the decree, and it cannot be ascertained which one of them operated on the mind of the trial court in his ruling excluding it, and plaintiffs do not complain in their motion for a new trial or in their briefs of any infringement upon their constitutional rights by the ruling, the construction of either Constitution is not so involved in a jurisdictional sense as to give the Supreme Court jurisdiction of plaintiff’s appeal.</p>

— Hon. A. D. Burnes, Judge. The defendant gave the list on which the assessment was made, duly signed and sworn to by him, to the county assessor, on June 26,1905'. Defendant after that made his final settlement in September, 1905, long before the assessor’s bo„oks could be made up or filed, and had in his hands a large amount in excess of what would have been sufficient to pay all costs of administration and these taxes.

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge, (1) The court erred in sustaining a demurrer to the evidence at the close of the evidence for plaintiff. The demurrer to the evidence admits the truth of every fact which the evidence tends to prove, an axiom of decision in this State.

<p>SALE OF SCHOOL LANDS: Order of County Court: Petition by People of Township: Jurisdiction. While See. 8161, R. S. 1899, gives the county court the power to direct the sale of school lands, it requires, as a condition precedent to its exercise, a petition from the beneficial owners, the people of the township. Such petition is jurisdictional, and without it no right can be acquired through the sale.</p>

— Eon. F. C. Jolmston, Judge. The demurrer to the evidence tendered by defendant should have been sustained. (1) Deceased’s death was not the proximate cause of his alleged negligent expulsion, but it happened while he was a trespasser and there is no proof whatever of any of the circumstances attending the accident.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. Contracts made in this State by an unlicensed foreign corporation, doing business here, are illegal and void. Amusement Co. v. Amusement .Co., 192 Mo. 404; Mill & Lumber Co. v. Sims, 197 Mo. 507; Roeder v. Robertson, 202 Mo. 522; Machinery Co. v. Ramlose, 210 Mo.- 631, 231 Mo. 508; Zinc & Lead Co. v. Mining Co., 221 Mo. 7.