Volume 254 — Missouri Reports

— Eon. W. O. Thomas, Judge. (1) The instrument executed by appellant May 23, 1907, acknowledging receipt by her from the estate and heirs of Melville TI.

— Hon. John P. Butler, Judge. (1) If Isaac S. Cunningham had sufficient mental capacity at the time of making the deed in question to understand the nature and effect of the transaction, the deed cannot he set aside on the ground of mental incapacity.

— Hon. D. E. Blair, Judge. (1) When a man dies leaving children his widow is endowed of one-third part of her husband’s lands: for life (Sec. 345, R. S. 1909) and a share of the personal estate equal to that of a child (Sec. 349). When a man dies leaving a widow and no children his widow is. entitled to one-half of his real and personal property absolutely. Sec. 351, R. S. 1909'.

— Hon. L. J. Eastin, Judge, (1) Insanity is shown by proof of acts and conduct inconsistent with the character and previous habits of the party. McCurry v. Hooper, 12 Ala. 823. This court has said: “Testamentary incapacity may be shown to exist when the mind is so damaged by the ravages of disease and so dull and torpid as not to measure up to a common sense testamentary mark. ’ ’ Crum v. Crum, 132 S. W. 1070; Turner v. Anderson, 236 Mo. 544.

Louis City Circuit Court. — No». William M. Kinsey, Judge. (1) A promoter of a corporation occupies a fiduciary relation to the corporation which he promotes and to its stockholders, and like all fiduciaries, such as agents or trustees, cannot make any personal profit or gain out of any transactions for or with his principals, either by way of profit in dealings with the corporation or as remuneration for his services in promoting the corporation.

— Hon. L. B. Woodside, Judge. (1) The tax deed is void because the judgment on which it is based does not describe the land, and only uses for description the characters S2 SWá and section, township and range, and does not state quantity of land. R. S. 1889, sec. 7683. (2) Levy of execution on July 4th is void and renders tax deed void. R. S. 1889, sec. 8952; Decker v. Railroad, 92 Mo. App. 52; Lynch v. Donnell, 104 Mo. 529.

— Hon. David H. Blair, Judge. (1) The court erred in refusing to give the instruction in the nature of a demurrer to the. evidence as requested by defendant at the close of plaintiff’s case, and as requested by defendant at the conclusion of all of the evidence in the case, (a) Because plaintiff was guilty of contributory negligence as a matter of law in attempting to pass between the cars at the time and place, and in the manner he did.

— Hon. F. G. Johnston, Judge. (1) The allowance of the demand was rendition of a judgment against the estate. With the expiration of the term the judgment became final and conclusive. (2) It was no longer open to attack except in a court of equity under the ancient equity jurisdiction for fraud. Fitzpatrick v. Stevens, 114 Mo. App. 497.

— Eon. Peter H. Euch, Judge. (1) On the 26th day of September the circuit court called its execution docket, a certified copy of page 15 of which, showing the issuing of an execution in the case of Depoyster v. Imhoff, was introduced by defendant, and the following notation was made by the judge with reference to this execution: “26 Sept., 1900, unsatisfied.” This was made, of course, upon information given by the sheriff.

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

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

— Eon. J. C. Sheppard, Judge. (1) J. H. Boardman was adjudged insane, and the management of his business affairs and his estate were placed in the hands of a guardian and curator long before the final decision and decree of the trial court was rendered. Yet, with full knowledge of this fact, the decision and decree were rendered against said Boardman without his guardian and curator being made a party to this suit. This is reversible error.

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) Whenever in pursuance of any law the property of an individual is to he divested against his will, there must be a strict compliance with all the provisions of law authorizing such a proceeding. Lind v. Clemens, 44 Mo. 540; In re Bledsoe Hill, 200 Mo. 630; 3 Dillon on Municipal Corporations (5 Ed.), secs. 1040, 1041; 4 McQuillin on Municipal Corporations, secs. 1531, 1532; 2 Lewis on Eminent Domain, sec. 497.

— Eon. Thomas J. Seehorn, Judge. (1) This court has jurisdiction of this appeal, as the constitutional question is lodged herein of the construction of Sec. 14, article 2 of the Constitution of Missouri. Williams.v. Railroad, 233 Mo. 666; Hanlon'v. Pulitzer Co., 167 Mo. 124; Creve, etc., Co. v. Tamm, 138 Mo. 387; Logan v. Field, 192 Mo. 66.

Louis Court of Criminal Correction. —Hon. Benjamin J. Klene, Judge. (1) • (a) The city cannot take cognizance of occurrences on private premises. There must be something of a public nature in the place itself, (b) The charter authorizes the city to restrain and prevent any riot, rout, noise, disturbances, or disorderly assemblage and amusements dangerous to persons or prop^ erty. Charter, St. Louis, art. 3, sec. 26.

<p>1. DRAINAGE DISTRICT: Notice of Viewers’ Report. The statute regulating the establishment of drainage districts in 1906 (Laws 1905, p. 180 et seq.) requires that, after the report of the first viewer's has been filed, notice shall be given of the pendency of the petition, “the appointment and report of said viewers, the place of beginning, route and terminus” of the ditch, etc.; and that means that notice must be given of the subject-matter of the viewers’ report, not merely of the fact that they have made a report.</p> <p>2. -: ----: Jurisdiction of County Court. The petition for the establishment of a drainage district described the ditch as beginning on or about the land of A, north of mile post 32 of the Rock Island railroad, running thence east along the right of way to the Bonhomme creek, and then in a northerly direction to the river. In accordance with the statute (Laws 1905, p. 180 et seq.) viewers were appointed by the county court, who reported that the ditch should begin at a point on the land of A, northwest of mile post 32 of the Rock Island railroad, and run thence east and nearly parallel with the railroad, at an average distance of 200 feet from, it, across the lands of several owners named, to Bonhomme creek, thence in a northerly direction, across other lands, to the river. Notice was then published of the pendency of the petition, of the, appointment of the viewers, and of the fact that they had filed their report, etc., but no description of the proposed ditch was included save that set out in the petition. Eelcl, that the statute as amended in 1905 requires notice of the subject-matter of the viewers’ report, and where, as here, there is a material variance between the description of the ditch as set out in the petition and that included in the viewers’ report, hut not published, the county court does not acquire jurisdiction to establish the ditch in accordance with the report of the viewers.</p> <p>3. -: Statutory Appeal: Notice. While an appeal lies from the county court in a proceeding to establish a drainage district, the statute authorizing it distinctly specifies the questions that may be considered by the court to which the appeal is taken and thereby denies any remedy by appeal for the insufficiency of the notice the statute requires to be given.</p> <p>4. CERTIORARI: Office of the Writ. The office of certiorari is to bring the record of the proceedings' of an inferior court or tribunal before a superior court to determine whether it has acted legally, and the leading object of the writ is to keep inferior judicatories within the bounds of their jurisdiction.</p> <p>5. -: Drainage District: Jurisdiction: Notice of Viewers' Report. Certiorari is the proper remedy to try the action of a county court in a statutory proceeding to establish a drainage district, where the court has proceeded to establish the ditch without giving notice of the viewers’ report, particularly where, as here, the record affirmatively shows that legal notice was not given.</p>

<p>APPEAL: Premature: No Judgment. An appeal taken by plaintiff after the court has sustained a demurrer to his evidence and he has taken a nonsuit with leave, from a record entry reciting only those facts, is premature, there being no judgment in the cause.</p>

Louis City Circuit Court. — Ron. Charles Claflin Allen, Judge. (1) On a demurrer to plaintiff’s evidence, every reasonable intendment in favor of plaintiff to be drawn from the evidence offered by Mm must be indulged in Ms favor, and tbe evidence introduced in Ms bebalf regarded as absolutely true. Gratiot v. Railroad, 116 Mo. 450; Schwyart v. Barrett, 145' Mo. App. 334; Hannan v. Coal Co., 156 Mo. 243; Fassbinder v. Railroad, 126' Mo.

— Hon. Charles D. Steioart, Judge. (1) The court erred in not sustaining the motion of the appellants to dismiss this cause for the reason it had no jurisdiction on account of the defective notice.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. ■ (1) The reference in this cause was erroneous, (a) Reference is a matter of purely statutory right, and unless the case in which it is asked or in which it is granted is within the statute, the parties not consenting, the court has no power to grant it. Tool Co. v. Spring Co., 146' Mo. App-. 31; Ice Co. v. Tamm, 138 Mo. 385.

Louis City Circuit Court. — Hon. W. M. Kinsey, Judge. (1) Defendant’s instruction in the nature of a •demurrer requested at the close of the State’s case, should have been given. There is no proof that the property mentioned in the information was stolen. State v. Smith, 37 Mo. 68; State v. Honig, 9' Mo. App. '298; State v. Honig, 78 Mo. 249; State v. Pink, 186 Mo. •50. There was no proof that defendant knew that it was stolen.

— Hon. Ralph 8. Latshaw, Judge. (1) The court erred in not sustaining the demurrer to the evidence in that the evidence submitted proved that he was president and treasurer of the corporation and not agent, servant or collector, as charged in the information. R. S. 1909, sec. 4550; Kiles v. People, 81 111. 600; People v. Allen, 5 Denio (N. Y.), 79; Comm. v. Wyman, 8 Met.

— Hon. E. E. Porterfield, Judge. (1) (a) The criminal court of Jackson county, division 2, and the circuit court of Jackson county, division 7, are wholly separate and distinct courts, each having its own separate and distinct organization, officers and record. The jurisdiction of the two courts is entirely different. Ins. Co. v. Shattuck, 159 111. 616, 57 111. App. 382; State ex rel. v. Fort, 210 Mo. 512.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The court erred in refusing to give an instruction as to the testimony of an accomplice. The word “accomplice” means simply a participator in crime, and at common law it included all the particeps criminis, whether principals in the first or second degree, or accessories. Russ. Crimes (9 Ed.), 49; 4 Blk. Com. 27; Johnson v. State, 2 Ind. 652; Hudspeth v. State, 50 Ark. 534; Cross v. People, 47 111. 152, 95 Am.

<p>1. HOMICIDE: Manslaughter: Assault on Defendant's Wife: Evidence. Where the evidence in a prosecution for murder, when most liberally construed in that respect, tends to show only that the defendant came home in the evening and was told by his wife that the deceased had, a few minutes before, “come out in his night clothes and tried to force her into his bedroom,” but she escaped, and thereupon the defendant went to the deceased’s room, where he found him in bed, and shot him, there is no issue of manslaughter to be given to the jury, especially in view of. the fact that defendant’s testimony does not show that he shot in a frenzy, hut that he ordered deceased out of his house, and shot him, as he says, because deceased was in the act of shooting him.</p> <p>2. -: Evidence: Dying Declarations. Statements made when all hope of life had been abandoned, are admissible as dying declarations, and their admissibility is not destroyed by the fact that the next morning the declarant expressed a feeling that, he might live if blood poison did not set in.</p>

<p>Appeal from Shannon Circuit Court. — Ho». W. N. Evans, Judge.</p>

<p>1. COSTS: Continuance: Criminal Case: Taxed Against Party Asking Continuánce. Where in a criminal case a continuance was granted at the October term, 1909, upon application by the State, all costs incurred at that term being adjudged against the State, and at the October term, 1910, the defendant pleaded guilty and was sentenced to the penitentiary, the costs taxed against the State at the 1909 term must be paid by it, in accordance with Sec. 5203, R. S. 1909, which provides that when a continuance in a criminal case is allowed on the application of either party, “it shall be at the costs of the party at whose instance it is granted, unless the court otherwise direct.” Secs. 5376 and 5377, R. S. 1909, are announcements more in the nature of a general rule for the taxation of costs when the defendant is convicted and do not undertake to retax costs that have been previously adjudged.</p> <p>2. SHERIFFS: Fees: Constitutional Law. A sheriff whose term began before the enactment of the statute giving to sheriffs fees for mileage in subpoenaing witnesses in criminal cases (Laws 1909, p. 505) is not entitled to those fees, for, if allowed, they would amount to an increase of his fees during his term of office, in violation of the Constitution</p>

Louis City Circuit Court . — Eon. ' James E. Withrow, Judge. (1) Before a court of equity will reform a written instrument on the ground of. mistake the evidence must he clear and convincing that there was a mistake made and that the mistake was mutual, blunter v. Patterson,. 142 Mo. 310; Judson v. Mullinax, 145 Mo. 630; Brokammer v. Hoss, 17 Mo. App. 1; Henderson v. Beasley, 137 Mo. 199 ; Sweet v. Owens, 109 Mo. 1; Meridith v. Holmes, 105 Mo.

— Eon. C. A. Benton, Judge. (1) The policy in controversy contains a waiver of notice of maturity of premium and this waiver dispenses with the necessity for compliance with the so-called New York Notice Law even if such law would otherwise be applicable. Life Ins. Co. v. Hill, 193 U. S. 551.

<p>HABEAS CORPUS: Insane Person: Committed to Guardian and Removed from Criminal Court. Petitioner was said to have committed certain felonies. He was thereafter adjudged insane by the probate court,, and a guardian appointed, to whose custody he was committed. Thereafter formal complaints were filed, charging him with having committed said crimes. A preliminary examination was held, and the fact of his adjudication to be an insane person was not mentioned before the examining magistrate, who, in ignorance of his status, held him to bail, and in default thereof committed him to the custody of the sheriff, who is the respondent in this habeas corpus for his discharge. Held, that, when the insane ward is thus charged with a criminal offense, the right of the guardian to his custody is subordinate to that of the criminal court, and the writ is denied.</p>

Mandamus. (1) Respondent’s assignors accepted the franchise and entered upon the performance of the duties imposed thereby, and respondent’s assignors and respondent became obligated to supply all the natural gas required by relator and its inhabitants. This duty is specific, absolute- and unconditional and its performance can he compelled by mandamus. Gas Co. v. State ex reí, 135 Ind. 54; Gas Co. v. Anthony, 26 Ind. App. 321; 2 Morawetz on Priv.

Prohibition. (1) The order made by respondent Judge Trimble, requiring the production of, and compelling relator to submit, the records and documents in said order mentioned to the said Cora Sells and her attorneys for inspection, and permitting copies to he made therefrom, was void. Said order was made without jurisdiction.

Certiorari. (1) Certiorari will issue by the Supreme Court to an inferior court in order to prevent an unregulated or unauthorized exercise of powers by such inferior court in a habeas corpus case. State ex rel. v. Dobson, 135 Mo. 1; State -ex rel. v. Broaddus, 245 Mo. 123; State ex rel. v. Smith, 176 Mo. 99; State ex rel. v. Shelton, 154 Mo. 670; State ex rel. v. Lichta, 130 Mo. App. 284; State ex rel. v. Broaddus, 238 Mo. 189; State ex rel. v. Knutt, 207 Mo. 167.

Prohibition. (1) Our statutes provide that the remedy by writ of prohibition shall he granted to prevent usurpation of judicial power, and in all cases where the same is now applicable according to the principles of the common law. R. S. 1909, sec. 2622; State ex rel. v. Groodier, 195 Mo. 561; State ex rel. v. Reynolds, 209 Mo. 161.

— Mon. E. W. Mmton, Special Judge. (1) The representations of defendant’s agents that shafts had been sunk and coal found at different places upon the tract of land in controversy, and the quality and quantity of coal actually discovered at each of these places, were statements of fact and not mere matters of opinion. False and fraudulent representations of previous explorations and the results thereof furnish ground for the rescission of a purchase of mining properties.

<p>1. APPELLATE JURISDICTION: Change in Court of Appeals District: Transfer of Pending Causes: Act of 1913. The Act of March 21, 1913, Laws 1913, p. 204, by which certain counties were taken from the St. Louis Court of Appeals district and added to the Springfield Court of Appeals district, made no provision for the transfer of causes already appealed from the ■circuit court of one of the counties so transferred and then pending in the St. Louis .Court of Appeals. Consequently the Springfield Court of Appeals has no jurisdiction to hear and determine a cause already appealed from a county so transposed and pending in the St. Louis Court of Appeals at the time the act took effect, and the St. Louis Court of Appeals has no authority to transfer such a cause to the Springfield Court of Appeals, nor does the latter court acquire jurisdiction by such transfer.</p> <p>2. -: -: -: -: Legislative Power. The amendment to the Constitution of 1884 gave to the General Assembly power to transfer counties from one court of appeals district to another, and also power to transfer cases pending in one court of appeals to another; but the Act of 1913, transferring certain counties from the St. Louis Court of Appeals to the Springfield Court of Appeals, was silent as to cases “now pending,” and made no provision whatever for the transfer of a cause already appealed from the circuit court of a county transferred by the act to the Springfield Court of Appeals and then pending in the St. Louis Court of Appeals; and the St. Louis Court, having already acquired jurisdiction of the cause so appealed from one of said counties, its jurisdiction continues until it is exhausted by a final determination of the cause or taken from it by a valid legislative enactment.</p> <p>S. JURISDICTION: Statute: Retrospective Operation. Unless such intention is clearly expressed,, a statute depriving a court of jurisdiction does not operate retrospectively to suspend proceedings then pending, and a statute conferring jurisdiction does not operate to give jurisdiction over causes of action arising before the enactment of the statute unless such power is clearly expressed.</p>

— Hon. Daniel E Bird, Judge. (1) The complaint does not allege and the proof ■does not show an express statutory ground or other good cause for the removal of the guardians. R. S. 1909, secs. 50, 424, 462; King v. King, 73 Mo. App. 78; Nicholson’s Appeal, 20 Pa. St. 50. (2) A person cannot be rendered ineligible to an office of trust under this State on account of his religious opinion. A religious test as a qualification for tenure of office is unconstitutional. U. S. Con.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. (1) One cotenant cannot buy in an outstanding title to tbe exclusion of tbe other cotenants. Kohle v. H'obson, 215 Mo. 213; Hinters v. Hinters, 114 Mo. 29; Allen v. De G-roodt, 105 Mo. 452, 98 Mo. 161; Tisdale v. Tisdale, 2 Sneed, 596. (2) And when sucb a purchase is made, it inures to the others upon contribution. Nalle v. Parks, 173 Mo. 625; Allen v. De Groodt, 105 Mo. 452; Hinters v. Hinters, 114 Mo. 26.

— Mon. J. L. Fort Judge. (1) Where in a trial for rape committed on a female under fourteen years of age on a date specified, the prosecutrix testifies to the commission of the offense on that day and to subsequent offenses during a period of nearly a year, it is the duty of the court to confine the consideration of the jury to but one of the offenses, and the State, at the close of its case, should have been required to elect upon which act it would rely for conviction.

’ Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The right to assign wages, .earned and unearned out of existing employment, has long been recognized as a right and privilege inherent to citizenship. Such right is a property right within the constitutional meaning of that term. Loan Assn. v. Railroad, 124 Mass. 584; Frorer v. People, 141 111. 171, 16 L. R. A. 492; Massie v. Cesna, 239 111. 352; Rodijkeit v. Andrews, 5 L. R. A. (N. S.) 564; Bell v. Mulholland, 90 Mo.