Volume 256 — Missouri Reports

<p>Appeal from Ste. Genevieve Circuit Court. — Hon. Charles A. Killian, Judge.</p>

— Hon. G. H. Skinker, Judge. (1) The court committed error in admitting a number of the deed records offered in evidence by the plaintiff without the proper preliminary proof that the original deeds could not be had. (2) The court committed error in admitting in evidence record of deed of Granville L. Noland, deceased, by administrator, to. Harriet E. Noland.

<p>CIRCUIT COURT: Jurisdiction: Mechanics’ Liens. The circuit courts have original jurisdiction, concurrent with that of justices of the peace, over suits to enforce mechanics’ liens for amounts less than fifty dollars.</p>

— How. Samuel Davis, Judge. (1) It is conceded by the first stipulation set forth in the “Statement” that William Heynbrock, Sr., was. the owner of the title of the land described in said stipulation. The undisputed evidence of County Surveyor Walker, quoted in the statment, established that the strip of land involved in this suit is part of the land described in said stipulation.

— Eon. Nat M. Shelton, Judge. (1) The first count of the petition states a good cause of action.

<p>LIBEL: Jurisdiction: Venue. A trial court does not have jurisdiction to hear and determine a libel suit brought in another county than that in which the plaintiff resided or the defendant, if a newspaper, first published the libel or had an office or agent. [Following Houston v. Pulitzer P'ublishing Co., 249 Mo. 332.]</p>

— Hon. Francis H. Trimble, Judge. (1) The object of Sec. 650, R. S. 1899, now Sec. 2535, R. S. 1909, is not to determine title as against tbe whole world, as in proceedings in rem, but is to determine issues between adversary parties and their respective titles. Dixon v. Hunter, 201 Mo. 390. It was consequently unnecessary, therefore, to have Mrs. Moore made a party to this suit. Besides, no such objection was made in the trial below.

— Hon. George W. Wanamaker, Judge. (1) By plain statutory provision, this property was made taxable in Mercer county, Missouri. Sec. 11355, R. S. 1909.

<p>TAX SUIT: Relator. A suit for city taxes due a city of the fourth class should he brought in the name of the State of Missouri at the relation and to the use of the city collector, naming him and the city for which he sues.</p>

Charles Circuit Court. — Hon. James D. Barnett, Judge. (1) The sale by the trustee under the deed of trust here presented was premature and therefore void, (a) The power given in a deed of trust is a creature of contract, and not of law, and it must be strictly followed to render its exercise legitimate. Stewart v. Brown, 112 Mo. 171; Schanewerk v. Hobericht, 117 Mo. 22.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The notices of the contractor’s default given to the surety company by plaintiffs were a sufficient compliance with the terms of the bond. Grocery Co. v. Guaranty Co., 130 Mo. App. 431; Fidelity C'o. v. Bank, 97 Ga. 634; Ins. Co. v. Surety Co., 93 Cal. 7; Bldg. Assn. v. Gibbs, 119 Mich. 318; Surety Co. v. Pauley, 170 IT. S. 133; Roark v. Trust Co., 130 Mo.

— Hon. W. G. Ellison? Judge. (1) The appeal was not taken from the action of the Holt Circuit Court in overruling the exceptions to the report of the commissioners assessing benefits and damages to the appellants, in which the action of the court was interlocutory and not final. The appeal was takeu from the judgment of the court approving the report of the commissioners. The finding of the court, overruling the exceptions of appellants, is shown in appellant’s abstract.

<p>Appeal from Holt Circuit Court. — Hon. W. G. Ellison; Judge.</p>

<p>Appeal from Holt Circuit Court. — Eon. W. G. Ellison, Judge.</p>

<p>CONSTITUTIONAL QUESTION: Not Urged on Appeal: Jurisdiction. An objection to the constitutionality of a statute made in the trial court and abandoned on appeal, or not maintained by argument or specification, does not vest jurisdiction in the Supreme Court to hear the appeal.</p>

— Eon. B. O. Thurman, Judge. (1) The motion to strike ont part of defendant’s answer should have been sustained.

-Appeal from Holt Circuit Court. — Hon. William C. Ellison} Judge. The petitioner was entitled to the nse of the whole width of twenty feet, as established by the court, and for which he paid damages. If the landowner had the right to reduce the width to twelve feet, and in some places to eight feet, as the evidence shows, then he had a right to reduce it to a less width.

— Eon. W. 0. Thomas, Judge. (1) The petition charges last chance- and excessive speed, repugnant causes of action, (a) The evidence fails to sustain either. Therefore, (b) objections to the evidence and (c) demurrers to the evidence should have been sustained, (a) Gabriel v. Railroad, 130 Mo. App. 651; Krehmeyer v. Transit Co.. 220 Mo. 639; Grout v. Electric Ry., 125 Mo. App. 552; (b) Rinard v. Railroad, 164 Mo. 284; (c) Kinlen v. Railroad, 216 Mo. 158; Moore v. Iindell Ry.

— Eon. B. G. Thurman, Judge. (1) A tax suit is a proceeding practically in rem and the petition is the foundation, and it must contain a full and accurate description of the real estate to be charged. The revenue law authorizes abbreviations in assessments, but not in the tax petition. O’Day v. McDaniel, 181 Mo. 5291. (2) Inadequacy of price, coupled with irregularities in the proceedings, will authorize the setting aside of a judicial sale. State ex rel. v. Elliott, 114 Mo.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The facts stated and contained in defendant’s plea in bar and of former jeopardy stand admitted on the record, for the demurrer of the State admits the facts therein stated and the inferences to be drawn therefrom.

— Hon. R. H. Middlebrook, Judge. (1) The time of filing a paper is the date of the delivery thereof to the proper officer, without regard to the action that the officer may take on it. Therefore, when Mr. Silver, on September 19,1910, delivered; to the clerk the paper dismissing the appeal, the effect of such dismissal is not altered by the fact that the clerk failed to make record thereof. Grubbs v. Cones, 57 Mo. 84; Collins v. Kammann, 55 Mo.

Louis City Circuit Court. — Eon. James E. Withrow, Judge. (1) Under the provisions of Sec. 2, art. 6, of the charter of the city of St. Louis, requiring the owners of the land to be taken to be named and made defendants in the petition for opening a street, and that it shall not be necessary to make any party a defendant unless they are in actual possession of the premises sought to be condemned, notwithstanding the allegation in it is that the defendants own “or claim some…

— Eon. Alonso D. Burnes, Judge. (1) Appellant questions the validity of the order •entered by Judge Ellison, in awarding a change of venue herein, from the circuit court of Nodaway eounty to that of Andrew county, said order reciting, viz: •“And the venue of said court is accordingly, hereby ordered, changed to the said circuit court of Andrew county.” Said order is a nullity, and no jurisdiction has been acquired by the latter court of the subject-matter of this suit, and…

— Hon. Jesse G. Sheppard, Judge. (1) The court erred in holding that the petition in the suit for back taxes,, and which led up to the making of the sheriff’s deed to Jones and Weber, stated facts sufficient to constitute a cause of action, or in any essential respect complied with the requirements of the law. (a) The action must be prosecuted against the owner of the property. Sec. 7682, R. S. 1889.

<p>COMPANION CASE: Equivalent Facts: Same Ruling. Tbe maxims being that on equivalent facts tbe law is tbe same and tbe judgment is tbe same, and that it is proper to reason from similars to similars, tbe judgment in tbis case is affirmed for tbe reasons stated in Skillman v. Clardy, ante, page 297.</p>

— Hon. Alonzo D. Burnes, Judge. (1) There is a misjoinder of parties plaintiff to this action, for the reason that John Halasy, administrator of the estate of Bridget A. Halasy, deceased, has no interest in this suit, and this defect of parties plaintiff appearing upon the fact of the petition herein, the court erred in overruling defendant’s demurrer. Thorp v. Miller, 137 Mo. 231; Hall v. Bank, 145 Mo. 424; Chambers v. Wright Heirs, 40 Mo. 482.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) A joint judgment obtained against several defendants does not change the status existing between such defendants. Freeman on Judgments (4 Ed.), sec. 227, p. 400.

<p>Appeal from St. Louis City Circuit Court. — Eon. G. Clafiin Allen, Judge.</p> <p>(1) This is an action- on a plain and simple contract in writing. Bailey v. Chapman, 41 Mo. 538; Carpenter v. Rynders, 52 Mo. 281; Finch v. Trust Co., 92 Mo. App. 265; Concanon v. Mines & Mill Co., 156 Mo. App. 90; Kilpatrick v. Wiley, 197 Mo. 123; Rice v. Mayo, 107 Mass. 550; Stewart v. Fowler, 53 Kan. 537; Hodgkins v. Mead, 29 N. Y. 671; Willes v. Smith, 77 Wis. 81; Ward v. Cobh, 148 Mass. 518; Flynn v., Jordal, 124 Iowa, 457; Merriman v. Wicker sham, 141 Cal. 570; Flower v. Davidson, 44 Minn. 47. There was a sale, notwithstanding there was a clause of forfeiture in the contract; the latter provision being for the benefit of the vendor. Stewart v. Fowler, 53 Kan. 537; Willes v. Smith, 77 Wis. 81; Veazie v. Parker, 72 Me. 443. (2) The contract between Leathe and Knisely shows that the debt acknowledged in it was due from the former to the latter before the contract was entered into between them. Fitch v. Cunningham, 10 N. Y. 17; McComb v. Von Ellert, 7 Mise. (N. Y.) 59; Little v. Rees, 34 Minn. 277; Hough v. Baldwin, 50 Mise. (N. Y.) 546. (3) The nature of the services rendered by Knisely to Leathe that were the consideration for their contract, does not appear, but if they did appear and were for selling the property for Leathe, as his agent, it is not the duty of a real estate agent to see that a binding contract is entered into between his principal and the purchaser, nor that the terms of the sale are complied with by the purchaser, to enable him to recover his commissions. Morgan v. Keller, 194 Mo. 663; Gelatt v. Ridge, 117 Mo. 560; , Finch v. Trust Co., 92 Mo. App. 263, 271; Hayden v. Grillo, 42 Mo. App. ,1; Brown v. Smith, 113 Mo. App. 68. Knisely had done all that was required of him to be done by his contract. Love v. Owens, 31 Mo. App. 501; Carpenter v. Rynders, 52 Mo. 278; Bailey v. Chapman, 41 Mo. 536; Harwood v. Diemer, 41 Mo. App. 48; Goodson v. Embleton, 106 Mo. App. 77; Real Estate Co. v. Ruhlman, 68 Mo. App. 503; Finch v. Trust Co., 92 Mo. App. 270; Brown v. Smith, 113 Mo. App. 68; Nesbit v. Helser, 49 Mo. 383. (4) If Knisely had been simply an agent of Leathe, to make a sale of the property, and had concluded the terms of a sale of it with Wolcott, and Leathe had entered into a contract of sale of the property with Wolcott as he did, Knisely would have been entitled to recover his commissions of Leathe, not only irrespective of whether Wolcott paid the purchase price to Leathe, but also irrespective of the question of the ability of Wolcott to pay it. Á distinction that is generally recognized in the cases is, that if the broker signs the name of his principal to the written contract, the above rule does not apply unless his principal approves or accepts the written contract. Moore v. Irwin, 89 Ark. 289; Alt v. Doscher, 102 App. Div. (N. Y.) 344, 186 N. Y. 566; Fleet v. Barker, 120 App. Div. (N. Y.) 455; Yan Yarick v. Investment Co., 76 Mi$c. (N. Y.) 593; Gilder v. Davis, 137 N. Y. 504; Kalley'v. Barker, 132 N. Y. 1; Brink v. Goodelle, 138 N. Y. Supp. 1035; Lombard v. Sills, 170 Mo. App. 555; Glade v. Mining Co., 129 Mo. App. 443, 455; Wright v. Brown, 68 Mo. App. 577; Robinson v. Lowe, 169 Mo. App. 443; Francis v. Baker, 45 Minn. 83; Fox v. Ryan, 240 111. 396; Wilson v. Mason, 158 111. 311; Friestedt v. Dietrich, 84 111. App. 604; Scully v. Williamson, 26 Okla. 19; Hugill v. Weekly, 64 W. Va. 210; Flynn v. Jordal, 124 Iowa, 457, 459; Wenks v. Howard, 149 Iowa, 16, 21; Johnson v. Holland, 211 Mass. 363; Roche v. Smith, 176 Mass. 595; Ward v. Cobb, 148. Mass. 518; Rice v. Mayo, 107 Mass. 550; Cook v. Fiske, 12 Gray, 491; Seabury v. Ins. Co., 205 Pa. St. 234; Hippie v. Laird, 189 Pa. St. 472; Keys v. Johnson, 68 Pa. St. 42; Coleman v. Meade, 13 Bush (Ky.), 358, 360; Veazie v. Parker, 72 Maine, 443; Odell v. Dozier, 104 Ga. 203; Wray v. Carpenter, 16 Colo. 271; Parker V. Estebrook, 68 N. H. 349; Conkling v. Krakauer, 70 Tex. 735; Mortgage Co. v. Thetford, 43 Tex. Civ. App. 536; Levistone v. Landreaux, 6 La. Ann. 26; Love v. Miller, 53 Ind. 294, 300; Middleton v. Findla, 25 Cal. 81; Coward v. Clanton, 122 Cal. 451; Lockwood v. Halsel, 41 Kan. 166; Stewart v. Fowler, 53 Kan. 537; Whiles v. Smith, 77 Wis. 86; Parker v. Walker, 86 Tenn. 566; Mattes v. Engle, 15 S. D. 330; Loan & InvCo. v. Spindle, 108 Ya. 431; Land & Loan Co. v. Thompson, 86 Ala. 146, 149-150; Pfanz v. Hiumberg, 30 Ohio Cir. Ct. 711. Under the foregoing, the contract between Leathe and Wolcott for the sale of the property is ample proof in favor of appellant, that Wolcott was ready, able and willing to comply with his contract, and testimony in regard to the financial ability of Wolcott would not be admissible on a trial of this cause. Francis v. Baker, 45 Minn. 83; Fleet v. Barker, 120 App. Div. (N. Y.) 455. The foregoing is the settled doctrine of the courts of the United States on this question, except in the State of Maryland. Riggs v. Turnbull, 105 Md. 135. The case at bar is much stronger than the foregoing, as Leathe provided in his contract with Knisely, that the sale must be made to or through Wolcott. The principle on which said rule is based is, that where property is purchased and unqualifiedly accepted on delivery, or work done and so accepted, the contract is fully executed and payment therefor is due in the absence of a special contract otherwise. Waterworks Co. v. Joplin, 177 Mo. 527; Bishop on Contracts, secs. 795, 805. (5) The original petition herein was filed March 10, 1909, and a summons was issued thereon the next day. The latter was nine days prior to the expiration of two years after the first grant of letters testamentary on the estate. This summons was returned non est on its return day and an alias summons was issued on the latter day, which was returned duly executed April 27, 1909. If this case had been dismissed or a nonsuit taken in it the latter would have been the date of the exhibition of the claim in the case, under the literal terms of section 193. But there is no requirement of a previous exhibition of it when a regular presentation is made within the statutory period and prosecuted in court for allowance; a technical exhibition of a claim not being required for and having nothing to do with its allowance, but with its classification in certain cases. McKee v. Allen, 204 Mo. 674; Waltemar v. Schnick’s Estate, 102 Mo. App. 133,139; Spalding v. Snss, 4 Mo. App. 549. The claim having been previously exhibited, filing the petition herein and the issue of the summons thereon was the beginning of this suit and arrested the running of any statute of limitation against the claim. McCormick v. Clopton, 150 Mo. App. 135; Mc-Grath v. Railroad, 128 Mo. 1; State v. Wilson, 216 Mo. 215, 292. The issue of the alias summons on the return day of the original kept the process continuously alive, and its service completed the bar to the running of any statute of limitation. The service related back to the filing of the petition and the appearance of respondent did the same, even if the claim was not exhibited previously. Especially is this true in the latter case under section. 197, providing that claims may be established against estates in courts of record “in the ordinary course of proceeding.” Waltemar v. .Schnick’s Estate, 102 Mo. App. 133. (6) Sections 193 and 197 have been construed very liberally. Tevis v. Tevis, 23 Mo. 256; Milan v. Pemberton, 12 Mo. 598; Farrar v. Comfort, 33 Mo. 44; Williams v. Anthony, 47 Mo. 299; Gewe v. Hanszen, 85 Mo. App. 136; Robinson v. 'Levy, 217 Mo. 510; Sec. 1844, R. S. 1909; Kelly v. Thuey, 143 Mo. 429; Withers v. Railroad, 122 Mo. App. 288. (7) This suit is on a written contract for the payment of money by Leathe to Knisely, and comes directly under the ten-year limitation prescribed in the first clause of Sec. 1888, R. S. 1909, and it was begun more than a year and a half before the ten years expired. Respondent claims that this is a suit for damages, which is not true, but if it were, it is on the written contract and the ten-year statute applies to it. Howe v. Mittelberg, 96 Mo. App. 490; State v. Brown, 208 Mo. 613. (8) The plea of the legal exhibition of this claim to respondent, by the former suit, also anticipated and avoided the defense of the special statute of limitation, if it had been running. Bliss on Code Pleading, sec. 205; Monmouth. College v. Dockery, 241 Mo. 555; Transportation Co. v. Sims, 36 Mo. App. 233; 'Smith v. Richmond, 19 Cal. 481; Kenedy v. Williams, 11 Minn. 320; Knox v. G-erhauser, 3 Mont. 271. And where the petition shows a bar by the statute, as it did in this case, it .must also avoid it. State v. Tates, 231 Mo. 292; Burrus v. Cook, 215 Mo. 503; Zoll v. Carnahan, 83 Mo. 42; Bass v. Berry, 51 Cal. 264.</p> <p>(1) The ruling of the circuit court on respondent’s motion to strike out part of appellant’s third amended petition must be taken to have in part been the foundation of its later final judgment in the case. Hence to be reviewable on appeal a motion to set aside that judgment and thereafter the filing of a final bill of exceptions was necessary. Opportunity must first be given a lower court to correct errors by a motion to set aside its' judgment or for a new trial or in arrest of judgment before they can be considered by the appellate court. Banks v. Landis, 39 Mo. 406; Bishop v. Ransom, 39 Mo. 416; Collins v. Saunders, 46 Mo. 389; Harris v. Harris, 145 Mo. 622; Williams v. Railroad, 112 Mo. 485; R. S. 1909, secs. 2029-2031; Atchison v. Railroad, 94 Mo. App. 572; Pace v. Roberts, 103 Mo. App. 662; Richardson v. Association, 156 Mo. 407; Reineman v. Larkin, 222 Mo. 156. (2) However, if the ruling of the trial court in sustaining respondent’s motion to strike out parts of the appellant’s third amended petition is properly before the court here for review on appeal then the record discloses no error in that ruling. The purpose of the pleader in making the allegations as to the previous suit evidently was an endeavor to avoid two years’ special limitation declared by the administration statute barring demands against decedent’s estates by the pleader, invoking the saving clause of the general limitation statute which entitles parties who have suffered a nonsuit to commence a new suit within a year thereafter. R. S. 1909, sec. 1900. But this saving clause does not apply to cases where there is a special limitation. R. S. 1909, sec. 1907; Collins v. Pease, 146 Mo. 139; Clark v. Railroad, 219 Mo. 524; G-eren v. Railroad, 60 Mo. 405; Revelle v. Railroad, 74 Mo. 438; Davenport v. Hannibal, 120 Mo. 150; State ex rel. v. Musick, 145 Mo. App. 33, 165 Mo. App. 214. There are three ways for exhibiting claims against the estates of decedents to avoid the bar given by the statute. One is by suit against the executor or administrator in a court of record or the revival of a suit pending against the deceased at his or her decease. In suits instituted against the executor or administrator the summons must, however, be served within the two years; and in suits pending at the decease of the testator or intestate the revivor must be within the two years. R. S. 1909, secs. 192, 193. And the judgment if favorable to the claimant must then be exhibited to the probate court and classified. R. S. 1909, secs. 196, 197. The demand must also be followed up in court pursuant to the notice or, summons. Price v. McManus, 30 Mo. App. 627; Bank v. Marshall, 73 Mo. App. 108; In re Hensley, 121 Mo. App. 698. Respondent sued as executrix, was bound to invoke and could not waive this special statute of limitation. This statute is for the benefit of the devisees, heirs, distributees and other parties interested in the estate, and the executor or administrator cannot waive but must virtwbe officii plead it. Wiggins v. Levering’s Adm., 9 Mo. 157; Spalding v. Suss, 4 Mo. App. 541; 2 Woerner’s Am. Law of Adm., pp. 841-846. And for that the special statute creates the absolute bar by the mere lapse of time the defense based thereon was properly made by demurrer. State to use v. Bird, 22 Mo. 473; State ex rel. v. Spencer, 79 Mo. 314. And where the petition shows no cause of action for that the demand is barred by the general limitation statute the rule in this State now is also that a demurrer thereto is proper and must be sustained. Burrus y. Cook, 215 Mo. 503; Garth v. Motter, 248 Mo. 477. The demand of the appellant was not founded upon a writing, sealed or unsealed, for the payment of money or property within the meaning of the general statute of limitation of ten years. R. S. 1909, sec. 1888. But was a demand for damages to which the written contract was an incident and was therefore governed by the five-year limitation. R. S. 1909, sec. 1889. And the demurrer to appellant’s third amended petition was therefore also rightfully sustained on that ground. The demand was barred by the five-year limitation before the first suit was brought, August 1, 1907. Leathe’s written contract with Knisely promised the latter for his services the $107,500 in installments “out of the purchase price” of the property “at such time and place as the said Leathe should receive the principal payment on said real estate” from Walcott. But Leathe never received any purchase money from Walcott. (3) Courts of equity will not aid in enforcing stale demands where the party has been guilty of laches or has slept upon his rights. Poverty cannot be allowed as an excuse. Perry v. Craig, 3 Mo. 516. Neither will a mistake of law. Price v. Estell, 87 Mo. 378. And courts of equity view with disfavor suits that are brought long after the transactions litigated have occured and death has sealed the lips of those familiar with the occurrences. Lenox v. Harrison, 88 Mo. 91; Burdett v. May, 100 Mo. 13.</p>

— Eon. W. K. Amich, Judge. ' The judgment is absolutely void on the face of the record, because the punishment fixed, six months in the jail, is in violation of Sec. 3882, R. S. 1909. Ex parte Creasy, 143 Mo. 708. (1) The act charged constituted contempt at common law, and the statute not dealing with the matter, the common law is still in force. In re Clark, 208 Mo. 147; Eailroad v. Gildersleeve, 219 Mo. 193; State v. Doty, 32 N. J. L. 403; 9 Cyc. 15.

— Eon. Thomas J. Beehorn, Judge. (1) At the time of the institution, of this suit there was no statutory law permitting a railroad company to condemn land merely for “tracks, sidetracks, switch tracks and like appurtenances of a railroad yard,” and if there was any such law it is incumbent upon respondent to show the right has been given it in express terms or by necessary implication. Bridge Co. v. Stone, 173 Mo. 1.

— Hon. Samuel Davis, Judge. (1) In tlie interpretation of contracts, whether it be deed or other written instrument, the proper construction of the instrument must be sought from the entire deed, and not merely from any particular part of it.

Louis City Circuit Court. — Hon. W. B. Homer, Judge. (1) The duties of the board of equalization are-judicial in character. Black v. MacGonigal, 103 Mo. 197. (2) . Certiorari is the proper remedy. ■ State ex rel. v. Moss, 69 Mo. 495. (3) The proceeding is brought to issue by the motion to quash. State ex rel. y. Stephens, 146 Mo. 662; State ex rel. v. ‘Williams, 70 Mo. App. 238.

— Hon. Louis Hoffman, Judge. (1) The county surveyor’s survey was made according to law. R. S. 1909, secs. 11313 and 11314. His testimony made a complete case for plaintiff. R. S. 1909, sec. 11301; Houx v. Batten, 68 Mo. 86; Carter v. Spracklin, 246 Mo. 116; State v. G-uerusly, 9 Mo. App. 312.

<p>Appeal from Boone Circuit- Court. — Hon/ David H, . . Harris, Judge. - . ■ j</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The allegation that section 1708 of the Revised Ordinances of 1900 “was at all times mentioned herein in full force and effect” is the averment of a mere conclusion of law, and therefore was not admitted, either by the demurrer, or by the admission made in open court of the truth of the averments of fact.

Louis City Circuit Court. — Hon. Edwin W. Lee, Judge. (1) A motion for a new trial is not necessary to secure a review of a decision on a motion rendered after trial. Shohoney v. Bailroad, 233 Mo. 649. (2) The mandate in this case did not require the circuit court to issue the writ in opposition to the wishes of the relator.

— Hon. W. K. Amick, Judge. (1) It is undisputed that Pocoke purchased this property subject to a deed of trust and afterwards borrowed money from various persons, giving deeds of trust to secure same; the property was sold under the first deed of trust for $1565, which was the exact amount of money due on notes secured by deeds of trust on the property and at that time the title to the property passed out of Joseph Pocoke and Mrs. Po-coke became the purchaser thereof at the…

— Hon. James D. Barnett, Judge. (1) Plaintiff has no case against defendant Louisiana & Missouri Eiver Eailroad Company. Said defendant is sought to he held liable in this ease solely by virtue of Sec. 1060, E. S. 1899 (Sec. 3078, E. S. 1909).

Louis City Circuit Court. — Hon. Leo 8. Rassieur, Judge. (1) The trial court erred in refusing plaintiff’s instruction, because said instruction was predicated upon the whole evidence in the cause and the pleadings. Hisey v. Goodwin, '90 Mo. 366; Fairbanks v. Long, 91 Mo. 628; Eyan v. Spalding, 40 Mo. 166; Gage v. Averill, -57 Mo. App. 111.

— Hon. G. A. Denton, Judge. (1) The deed sought to be set aside having been made for the purpose of defrauding, hindering and delaying plaintiff’s creditors, it cannot be set aside at her suit. Cramer v. Bivert, 214 Mo. 473; Derry v. Fielder, 216 Mo. 176; Pomeroy’s Equity (1 Ed.), secs. 397, 398, 404.

— Eon. B. B. Middlebrook, Judge. (1) The order of June 4, 1878, by the county court of Jackson county declaring vacated as a public street Tracy avenue from Independence avenue south to Sixth street, in Kansas City, is insufficient as matter of law as shown by the proceedings of said court in evidence, to destroy such street or abrogate public right thereto, (a) Said county court is not shown to have had jurisdiction of the subject-matter.

<p>APPEAL: No Bill of Exceptions. Where appellant’s abstract shows no bill of exceptions and of the record proper only the pleadings and an entry that a motion for a new trial was filed, and respondent’s abstract shows that motion was not filed in time, a judgment for plaintiff to quiet title to real estate will be affirmed on respondent’s request, the short transcript showing a judgment within the issues made by the pleadings duly rendered and an order of appeal was timely filed in the appellate court.</p>

— Hon. Thomas J. Seehom, Judge. (1) (a) Plaintiff was guilty of contributory negligence as a matter of law and the case should be reversed on that account. Harlan v. Railroad, 65 Mo. 22; Hayden v. Railroad, 124 Mo. 566; Dyrcz v. Railroad, 238 Mo. 46. In .Kansas the rule as to contributory negligence is the same.

<p>BRIEFS: Statement of Points: Appeal Dismissed for Failure.. Tlie appeal is dismissed for failure of appellant to observe, in making his brief, the second clause of Rule No. 15 of the Supreme Court, that “all briefs . . . shall contain, separate and apart from the argument or discussion of authorities, a statement, in numerical order, of the points relied on, together with a citation of the authorities appropriate under each point.”</p>

<p>Appeal from Jackson Circuit Court. — Hon. Joseph A. Guthrie, Judge.</p>

Mandamus. (1) Sec. 3459, R. S. 1909, makes definite provision for the allowance of the witness fee to the relator herein, Officer Wander, for the exclusive use and benefit of relator St. Louis Police Relief Association. It does not fix the amount of the fee, but provides for the payment of the fees otherwise fixed by law. This section does not exclude any class of police. officers from receiving witness fees.

Certiorari. (1) The Supreme Court has superintending control over the Kansas City Court of Appeals where it has acted beyond or in excess of its power and jurisdiction. State ex rel. v. Broaddus, 245 Mo. 123. (2) An appellate court in this State is limited to the errors assigned in the motion for a new trial filed within the time allowed by law, and an attempt of an appellate court to investigate a question suggested otherwise is beyond its power and jurisdiction.

Mandamus. (1) The demurrer of respondent should be overruled and the writ of mandamus should issue as ashed by relator in its petition. Merrill on Mandamus, par. 108, p. 130. (2) The reason of the law prevails over its letter. 'General terms are so construed as not to lead to injustice or absurd consequences.

Certiorari. (1) The county court acted within the scope of its authority when it appointed Trumho, Dick and Flowers the county highway board April 23, 1913, and thereafter such persons constituted said board and could not be removed from their office and appointment so made and entered of record by an order of the county court made at its subsequent May adjourned term on June 2, 1913, as the authority of the court to alter, chang'e or set aside its orders made at its…

Prohibition. (1) “Where the act complained of affects the* complainant solely in his capacity as a member of the corporation, whether as stockholder, director, president or other officer, it is the act of the corporation.

<p>1. MANDAMUS: Practice: Demurrer to Petition: Issues of Fact. A return in the nature of a demurrer to the alternative writ in mandamus admits the facts pleaded in the application for the writ. Likewise, if the quo wwrrmio case in the trial court went off on demurrer, the facts pleaded in the petition therein were thereby admitted; and if that petition is incorporated in defendant’s application for the writ of mandamus to compel the transfer of the case from the Court of Appeals to the Supreme Court and the return is in the nature of a demurrer, the facts pleaded in that petition are admitted.</p> <p>2. APPELLATE JURISDICTION: Amount in Dispute: Uncontra'dicted Affidavit Filed in Court of Appeals. As to “the amount in dispute” the record coming from the trial court must show the appellate jurisdiction or the facts from which such jurisdiction may be determined. The jurisdiction of the Court of Appeals cannot be ousted by an uncontradicted affidavit filed therein, either before or after it has rendered judgment, stating that “the financial loss that will necessarily result to defendant by such judgment and action will be greatly in excess of ten thousand dollars, exclusive of costs.”</p> <p>3. -: -Quo Warranto to Oust Corporation of Franchises. Where the pleadings admit that the object and purpose of the quo loammto case, brought in the name of the State upon the information of the circuit attorney, are to oust of its franchises and corporate life a corporation having capital stock of ten million dollars, that said corporation at the time said proceeding was brought supplied ninety-five per cent of the electric light to the greatest city in the State, and that it has a virtual monopoly of selling electricity to the public in said city, “the amount in dispute” exceeds seventy-five hundred dollars, and the Supreme Court has jurisdiction of the appeal from a judgment of ouster entered in the circuit court. In such case the test is the loss in money to defendant should said judgment be sustained.</p>