Volume 265 — Missouri Reports

<p>1. BAIL BOND: Appellate Jurisdiction. The Supreme Court has jurisdiction of an appeal from a judgment of a circuit court rendered upon a writ of scire facias upon a forfeited bail bond, in a felony case, in total disregard of the amount of the bond.</p> <p>Held, by GRAVES, X, dissenting, with whom BROWN and BOND, XT., concur, that a suit on a forfeited bail bond is a civil action, and being such the Supreme Court does not have jurisdiction of an appeal by the surety from a judgment for $1500 rendered by the circuit court, but appellate jurisdiction is in the proper Court of Appeals.</p> <p>2. -; — : Difference from Recognizance. A recognizance is in all cases a contract acknowledged by the parties and entered or filed in the records of the court; a bail bond is an obligation given by the accused and one or more sureties conditioned that the same will be void upon the performance by the accused of such acts as he is by it required to perform. And while in the main like rules are applicable to both, yet if this distinction is kept in mind much of the confusion arising from the loose language employed in the statutes and some decisions will dis-</p> <p>appear. The statutes contemplate that either a bail bond or a recognizance may be taken, but from the nature of the obligation more strictness must be exercised in taking a recognizance than in taking a bail bond. ■</p> <p>3. PROBATE COURTS: Limited Jurisdiction. The Constitution of 1875 did not create probate courts, but simply emphasized their fundamental character, and provided that they should be uniform in organization, jurisdiction, duties and practice, and did not restrict their powers to matters pertaining to probate business, and did not so inhibit the Legislature from extending or enlarging their jurisdiction to include other matters, if the nature and character of the court is not thereby changed.</p> <p>4. COURTS: Constitutional Jurisdiction: Legislative Extension. The constitutional limitations of State courts may be extended by the Legislature unless by the Constitution expressly inhibited. State constitutions are but limitations upon legislative power, which is not limited except by express prohibitions or necessary implication; and none of the courts whose fundamental character is defined by the Constitution of 1875 is by its express terms placed beyond legislative control, except that the Legislature cannot change the character or the fundamental nature of the court.</p> <p>5. HABEAS CORPUS: Bail Bonds: Probate Courts. The probate courts of this State have power to issue writs of habeas corpus, and admit the accused to bail, and to accept a bail bond bind-, ing him to appear before the circuit court to answer an information preferred by the prosecuting attorney charging him with' a felony.</p> <p>6. BAIL BOND: Execution: Signature in Presence of Officer. A bail bond is not invalid as to the surety for the simple reason that it was not signed by the surety in the presence of the probate judge taking it. The distinction made by the statutes between recognizances and bail bonds must be regarded in such matters. Where the accused, charged by information with a felony, was brought before the probate judge on habeas corpus and the appellant expressed a willingness to sign the bond of the accused, and submitted to the judge satisfactory proof of his Qualifications as a surety, in the form of sworn statements as to the nature and value of his property, and the bond was later signed by the surety out of the presence of the judge, and later by the accused in the judge’s presence, the bond as to the surety is not invalid because not signed by him in the judge’s presence. [Distinguishing State v. Randolph, 22 Mo. 474; and overruling State v. Pratt, 148 Mo. 402, and also State v. Owen, 208 Mo. 573, in so far as it conflicts with this holding.]</p> <p>7. -: Surety: Qualifications: Personal Examination. Section 5127, Revised Statutes 1909, does not require a personal examination oí a surety of a bail bond as to tbe amount and value of his property; his qualifications may be determined from a sworn statement voluntarily filed by him.</p> <p>8. -: -: -: -: Non-Action Raised by Surety. The statute in reference to the qualification of a surety on a bail bond was not intended to be interposed as a shield behind which the surety can hide himself to prevent a payment of the obligation voluntarily entered into by him, but was intended for the protection of the public in providing a method by which the court or officer taking the obligation would be enabled to ascertain whether the- persons offering themselves as sureties possess such property as the law requires. An absolutely technical compliance with the statute in the details of qualifying the surety is not required, where there is a substantial compliance therewith.</p> <p>9. BAIL BOND AND RECOGNIZANCE: Execution: Difference. A recognizance is entered into in open court, must be made a matter of record, need not be signed by the principal or surety, and is an acknowledgment upon the record of a debt already due; a bail bond is a contract, signed by accused and one or more sureties, under a penalty, and its exéeution, delivery and approval give it its binding effect, and there is nothing in its nature or terms which requires that it should be signed in the presence of the court or officer taking it. The Legislature has not obliterated the distinctions between the two classes of obligations, nor intended that the requisites necessary to the validity of the one should be indiscriminately applied to the other. The statute does not require a surety to sign a bail bond in the presence of the court or officer taking it, and- its validity is not affected by the fact that the surety signed it elsewhere.</p> <p>10. BAIL BOND: Entered of Record. The validity of a bail bond is not affected by the fact that it was not spread upon the records of the court. Section 5125, Revised Statutes 1909, applies to recognizances, and not to bail bonds.</p> <p>11. -: —--: In Cases Other Than Habeas Corpus. In the absence from the county of the judge of the circuit court in which the criminal case is pending, the judge of the probate court is authorized to let any party indicted for a bailable offense to bail, regardless of whether a writ of habeas corpus has been issued. And, hence, the statute (Sec. 5125, R. S. 1909) requiring recognizances taken during term time of the probate court to be entered of record, does not apply to a bail bond approved by its judge.</p>

<p>1. STYLE OF CASES. The use of the words “informant,” “relator,” and “respondent,” and the proper style for a case in a petition for a writ in the nature of quo warranto, are discussed in this case; and it is held, that “informant” does not apply to the State, and the proper designation of the complainant in a prosecution hy information in the nature of quo warranto is as “relator,” and of him who is called upon to answer the information is as “respondent.”</p> <p>2. TOWNSHIP ORGANIZATION: Voting It Out: Invalid Statute. The statute (Sec. 11475, R. S. 1909) which requires a “majority of all the votes cast at said election” to vote out township organization in a county which has once legally adopted it, is contrary to section 9 of article 9 of the Constitution, which requires only “a majority of all the votes cast upon that question” to reject township organization; and to that extent at least the statute is invalid.</p> <p>S. -: -: Self-Enforcing Constitutional Provision: Supplying Invalid Hiatus in Statute. So much of section 9 of article 9 of the Constitution as says that “in counties which have adopted 'township organization’ the question of continuing the same may be submitted to the vote of the electors at a general election, in the manner that shall be provided by law,” is not self-enforcing, and does not purport to be, for it specifically relegates to the Legislature the manner of submitting the question to the voters. But so much of it • as says that “if a majority of all the votes cast upon that question shall be against township organization, it shall cease in said county; and all laws in force in relation to counties not having township organization shall immediately take effect and be in force in said county,” is self-executing, and clearly .needs no statute to put it in force. And these two clauses of the Constitution being divisible, so much of a statute as undertakes to prescribe the manner of submitting the question, as is separable from the rest, may be constitutional and valid, and the hiatus in the rest of the statute resulting from an unconstitutional provision requiring a majority of all the votes cast at a general election to discontinue township organization, may be supplied by this self-enforcing part of the Constitution declaring that a majority of the votes east on the question shall be sufficient.</p> <p>4. -: -: -: Sepanable Valid and Invalid Provisions in Statute. Where the entire statute is not built around the unconstitutional part, but that part is separable from the rest, the invalid part may be cut away, and the hiatus filled with a self-enforcing constitutional provision pertaining to the same subject; and if the valid part of the statute and the self-enforcing constitutional provision together constitute a workable plan, things done in pursuance thereto will be upheld.</p> <p>5. -: -: -: -: Valid Election: Appointment of County Collector. So much of section 117”45, Revised Statutes 1909, as' provides for the manner of holding an election for the purpose of discontinuing township organization and submitting the question to the voters, is adequate for that purpose, and is in harmony with section 9 of article 9 of the Constitution declaring that “in any county which shall have adopted ‘township organization’ the question of continuing the same may be submitted to a vote of the electors of such county at a general election, in the manner that shall be provided by law,” and is separable from the rest of the statute, and an election held in pursuance thereof is legal; but so much of said statute as requires “a majority of all the votes cast at said election” to be necessary to discontinue township organization, and so much of it as declares that in case township organization is discontinued “the county court shall appoint such county officers as is provided by law for counties not under township organization,” are contrary to the further provision of section 9, article 9, of the Constitution, declaring that “if a majority of all the votes cast upon that question shall.be against township organization, it shall cease in said county; and all laws in force in relation to counties not having township' organization shall immediately take effect and be in force in said county,” and those portions of the statute are likewise separable from the rest, and being invalid the said self-enforcing constitutional provisions, when those portions are cut away, supply the hiatus in the statute; and an election held in the manner provided by the statute, at which a majority of all the electors voting on the question but not a majority of all the electors voting at the election, voted to discontinue township organization, discontinued township organization iñ the county; and having been discontinued, the county court had no power to appoint a county collector, but that duty devolved upon the Governor.</p> <p>6. -: -: Appointment of County Collector. Where'township organization has been discontinued in a county at a legal election at which a majority of the electors voting on the question have - voted algainst township organization, the county court has no power to appoint a county collector, and so much . of section 11745, Revised Statutes 1909, as authorizes them to appoint, is invalid, for the Constitution says that in such case “all laws in force in relation to counties not having township organization shall immediately take effect and he in force in such county,” and that contemplates the general statute authorizing the Governor to fill vacancies in such county offices as that of county collector.</p>

<p>1. COMMISSIONER’S FINDING OF FACTS: Assignment of Exceptions. There are no statutory regulations of the powers and duties of a commissioner appointed by the Supreme Court to take evidence and report his findings in a mandamus case originally brought in said court; and while a formal assignment of exceptions to his finding of facts would be the better practice, in that said exceptions would serve to fix the lines of argument, a failure to make such an assignment will not preclude the court from considering all the facts.</p> <p>2. METROPOLITAN POLICE SYSTEM: Power of State Over. The State can, hy statute, provide for a metropolitan police force for its cities, and compel them to pay the expenses thereof hy appropriations out of the city’s revenues. [Following State ex rel. v. Mason, 153 Mo. 23.]</p> <p>3. -: -: Preservation of Public Peace. The principle underlying the metropolitan police system is that the first and highest duty of the State is to preserve the public peace, and that is- a State duty which extends and embraces every part, division, and subdivision of the State, is a governmental duty which devolves upon the State and not upon its municipalities any further than the State in its sovereignty may see fit to impose it upon or delegate it to them, and a police board established by the State in such cities pursuant to statutes, and the officers chosen by it, are State officers; and the same power that gives to a city municipal incorporation and authority to levy taxes and raise revenue can say to it that it must use a designated portion of that revenue to maintain the public peace, not only for the benefit of those within its borders, but for those other citizens who reside elsewhere.</p> <p>4. -: Inconsistent Freeholders’ Charter. The charter of Kansas City is subject to the laws of the State in all matters of State concern, and if there is a conflict, between the charter provisions and the statutes the charter provisions are to that extent void. The metropolitan police system is not a matter of local self-government, but both the board and officers are State officers, and the statute creating the system is but the exercise of the police power of the sovereign State.</p> <p>5. -: -: Antedating Charter. And it makes no difference that the State law antedates the city charter.</p> <p>6. -: Definite Number of Policemen. The utmost limit of policemen in Kansas City under the statute is one patrolman for every 700 inhabitants, and everything about the system, including salaries, is definite, except the manner of determining the population, which is to be ascertained “from the best known source for obtaining such information,” and except the number of police districts, and to add one district would be to add only one captain, one lieutenant and four sergeants, but no more patrolmen. The act has no more flexibility than seems reasonable.</p> <p>7. -: Ascertaining. Population. Where the statute fixes upon the number of patrolmen as its basis for the number of other officers and says the number of patrolmen for the city must not exceed “one for every seven hundred inhabitants, the estimate to be taken from the best known source for obtaining such information,” the board of a growing city in arriving at its population, is not shut up to the last United States census, but may use the best means available for ascertaining as nearly as possible the number of inhabitants — the last school enumeration, the last election returns, the number of users of city water, etc.</p> <p>8. -: Amount of Appropriation: Demand Disproportionate to Revenue. Where the board of a metropolitan police system has made a demand for an amount of money fully authorized by the statute and admitted to be needed, and the only objection by the city to appropriating such amount is that it is so disproportionately large that, if all of it is appropriated, other departments of the city government will be crippled, the city must yield, and appropriate the amount demanded; for, if the board has exercised its statutory discretion within the limits fixed by the law it cannot be disturbed, and if the amount is unreasonable it is the fault of the statute authorizing it, and the . statute cannot be declared invalid on the ground that in the opinion of the court it requires an unreasonable appropriation.</p> <p>9. -: -: -: Unreasonable Law: Number of Inhabitants. The law which fixes the number of policemen at one patrolman for every seven hundred inhabitants, and fixes their salaries, and requires the Board of Police Commissioners to estimate the population from the best information obtainable, may be unreasonable in the estimation of the court, but its reasonableness was a question for the Legislature; and if the board exercised its discretion in ascertaining the number of inhabitants in good faith and clearly within its statutory power, and thereby increased the number of patrolmen, and hence the demand for a larger appropriation, its acts cannot be questioned, and the court cannot say that the amount demanded is unreasonable, nor deny its writ of mandamus compelling an appropriation of the amount demanded by the board.</p> <p>HeW, by WOODSON, C. J., concurring in.part and dissenting in part, that the city revenues should not be so apportioned as to cripple either the police department or the other departments of the city government, and the appropriations should be made according to the needs of each equitably, and if there is not enough revenue to sustain all city departments then the Board of Police Commissioners should not be permitted to demand an amount so large as to cripple the other departments, and when the city council has made an appropriation for the police department which is not an unjust discrimination against it, mandamus should not go to compel a larger one.</p>

<p>1. COURT OF APPEALS: Prior Conflicting Decisions. Under the constitutional provisions declaring that “the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, he controlling authority in said court of appeals,” the divergence of opinion which will authorize the Supreme Court upon certiorari to quash the opinion and judgment of a Court of Appeals, is a contrary holding on a given “question of law or equity;” and rulings upon a question of law or equity may he the same, although a different state of facts may call for such rulings.</p> <p>2. -: -: Title to Real Estate. If the announcement in its opinion by the Court of Appeals that the case under consideration does not affect the title to real estate within the meaning of the statute, does not conflict with the last previous decision of the Supreme Court upon the question, the latter’s writ of certiorari should he quashed; but if, on the contrary, such announcement does conflict with such last previous decision, the record of the Court of Appeals (which includes its opinion) should be quashed.</p> <p>3. JURISDICTION: Suit on Special Tax Bill: Affecting Title to Real Estate. An action to enforce the lien of a special tax bill is one affecting title to real estate, and under the statute (Sec. 1753, R. S. 1909) must be brought in the county in which the land lies; and a decision of the Court of Appeals holding to the contrary, is in conflict with the prior decisions of the Supreme, Court, especially State ex rel. v. St. Louis Court of Appeals, 67 Mo. 1. c. 200, and should be quashed upon certiorari.</p>

Waller A. Powell, Judge. (1) It was proper to submit tbe case to tbe jury on tbe evidence supporting tbe allegation that defendant’s servants saw or by tbe exercise of ordinary care could have seen plaintiff in a position of peril in time to have avoided injury to plaintiff by stopping tbe train. Scullin v. Railroad, 184 Mo. 695.

Quo Warranto. (1) The information in this cause is sufficient and specifically charges facts which show, if true, that respondents have violated the antitrust statutes of this State. There is no misjoinder of parties respondent. State ex inf. v. Railroad, 240 Mo. 35; State ex rel. v. Grimm, 220 Mo. 483; State ex inf. v. Standard Oil Co., 218 Mo. 1; Sec. 10310, R. S. 1909. (2) This action is not barred by tbe Statutes of Limitation.

Mandamus. (1) A statute will not be declared unconstitutional unless its invalidity appears beyond a reasonable doubt. State v. Webber, 214 Mo. 272; State ex rel. v. Railroad, 215 Mo. 479; State v. Price, 229 Mo. 670; State ex rel. v. Gordon, 223 Mo. 547; State ex rel. v. Johnson, 234 Mo. 338. (2) The construction which the Legislature places upon the Constitution, while not conclusive upon the courts, is pursuasive as to its intent and meaning.

— Hon. David H. Harris, Judge. (1) The court erred in refusing instruction 13 requested by defendant upon circumstantial evidence. State v. Moxley, 102 Mo. 388. An instruction that defendant’s guilt need not be proved by direct testimony, but by circumstances, is dangerous, unless such an instruction as above from the Moxley case be given. State v. Sasseen, 75 Mo. App. 203.

— Hon. A. D. Burnes, Judge. (1) The petition states a cause of action against •defendants Frank H. Fulton and C. M. McConkey. Stanley v. Union Depot Co., 114 Mo. 606; and cases cited under next point. (2) The petition states a cause of action against the defendant Leroy A. Kelly, and theré is no misjoinder of defendants. Dulaney v. Buffum, 173 Mo. 1; Allred v. Bray, 41 Mo. 484; Murphy v. Wilson, 44 Mo. 313; Welsh v. Stewart, 31 Mo. 376; Meade v. Railroad, 68 Mo.

— Hon. E. Hi. Dearing, Judge. (1) There was no error in the trial of this case. The judgment was for the right party, and the motion for a new trial should have been overruled. R. S. 1909, sec. 1884; Abeles v. Pillman, 261 Mo. 359; Collins v. Pease, 146 Mo. 135; Rollins v. Mclntire, 87 Mo. 496; Campbell v. Greer, 209 Mo. 199.

— Hon. Alonzo I). Burnés, Judge. (1) The heirs were not trustees, and did not occupy any fiduciary relation, and did not have in their possession any fund to either hold or distribute, and the allowance of an attorney’s fee to their attorneys, to be taxed as costs in the case and paid out of funds belonging to other persons, was not authorized by any principle of equity jurisprudence. Kimbal v. Bible Society, 65 N. H. 161; In re Donges’ Estate, 103 Wis.-497, 74 Am.

— Hon. Ralph 8. Latshaw, Judge. (1) Absence of the word “feloniously.” The criminal court erred because appellant was not charged with any felony, nor did he plead guilty to any felony, and yet he was sentenced to two years in the penitentiary. The word “feloniously” nowhere appears in the information. Illegal voting in Kansas City is expressly made a felony by statute.

— Eon. E. E. Porterfield, Judge. (1) The rule of construction in cases of this character is strictissimi juris. 1 A surety is not to be held beyond the precise terms of his contract and his liability cannot be extended by implication. Blair v. Ins. Co., 10 Mo. 560; Bauer v. Cabanne, 105 Mo. 110; Bricker v. Stone, 47 Mo. App. 530; Erath y. Allen, 55 Mo. App. 107; Ins. Co. v. McDearmon, 133 Mo. App. 577.

— Hon. Thomas J. Seehorn, Judge. (1) Kansas City is not liable. First. Tbe charter of Kansas City provides: (a) No special tax bill shall be issued against city property, but a certificate shall be issued by the Board of Public Works, (b) A street, avenue or highway is exempt from assessments for sewer construction. ' Second. The ordinance for the construction of the District Sewer No. 146 and the contract with Walsh, plaintiff’s assignor, so provides. Third.

Quo warranto and Certiorari. Writ ok quo warranto quashed as to respondent Southern and sustained as to respondent She-LEY. See. 10556, R. S. 1909, is a general, and not a special law, and is therefore, not violative of Pars. 2, 32 or 33, Sec. 53, Art. 4. Constitution of Missouri. Ex parte Loving, 178 Mo. 203; State ex rel. v. Pond, 93 Mo. 620; State v. Walsh, 136 Mo. 405; Elting v. Hickman, 172 Mo. 257; State ex rel. v. Yancey, 123 Mo. 391;.

— Hon. W. K. Amide, Judge. (1) The shipment in question was interstate. It was therefore controlled by the Interstate Commerce Act and its amendments. Under section 20' of the Carmack Amendment to said act, as construed by the Supreme Court of the United States, the plaintiff in this case could not recover more than the declared value on which the shipping rate was based as snown by defendant’s filed and published tariffs and as provided in the shipping contract.

— Eon. Francis E. Trimble, Judge. (1) The attachment suit was in aid and ancillary to the main suit, and when this was dissolved there was nothing further to support the present suit which was in aid of the attachment suit. (2) The court erred in not sustaining appellants’ motion to abate and dismiss this proceeding. (3) Plaintiff could not maintain this suit in equity until he first exhausted his remedies at law. Implement Co. v. Jones, 143 Mo. 278.

— lion. A. E. Waller, Judge. . (1) There was no evidence that the decedent left any next of kin, and therefore there could be no recovery. Hegberg v. Railroad, 164 Mo. App. 514; Johnson, Admr., v. Mining Co., 171 Mo. App. 134; Troll v. Gaslight Co., 182 Mo. App. 600. (2) It was incumbent upon the plaintiff to prove that the decedent left' heirs direct or collateral, who would be entitled to the decedent’s real and personal property, under the laws of descent and distribution.

<p>1. SPOLIATION OF CAUSE O.F ACTION. A mere allegation in a motion to quash verified by affidavit, filed after appeal in the circuit court, that the justice officiating, wantonly and unlawfully, mutilated the statement of the cause of action filed by the plaintiff before him, by drawing an inked pen through certain words, is not sufficient to authorize the court to sustain said motion, since it does not reveal whether the alteration was made in exercise of the right of amendment broadly granted by the statute.</p> <p>2. JURISDICTION: Appearance and Appeal. The jurisdiction of both courts over the person of defendant is made complete by his appearance in the court of the justice of the peace, and by his taking an appeal from a judgment rendered against him by the justice and thereby voluntarily going to the circuit court and by his general appearance in the circuit court.</p> <p>3. FINDING OF FACTS: Voluntarily Made By Judge: Appeal. A voluntary statement in writing by the trial judge of the facts which led him to his decision in the case, uncalled for by either party, whether embodied in the text of the judgment or in a separate writing and filed in the case, cannot be substituted by either party for the evidence as a test of the correctness of the judgment; and where the evidence is not preserved in a bill of exceptions, a judgment cannot on appeal be reversed on the sole ground that the facts stated in such voluntary statement were not sufficient to authorize the judgment.</p>

— Ho». W. C. Ellison, Judge. (1) The court erred in making its finding for the plaintiff and rendering its judgment and decree for the plaintiff. No assessment was made of said lands as required by law. To recover there must be a legal assessment or there can be no delinquent taxes. State ex rel. v. Scott, 96 Mo. 72; State v. Spencer, 114 Mo. 574. The action of the assessor having been without notice to. defendant is void.

— Eon. W. N~ Evans, Judge. (1) The petition fails to state sufficient facts to constitute a cause of action. Appellant’s objection to the introduction of any evidence should have been sustained. Secret Service Co. v. Mfg. Co., 125 Mo. 156; Davis v. R. E. Co., 115 Mo. App. 338; Coal & Iron Co. v. Long, 231 Mo. 605; Wendover v. Baker, 121 Mo. 290;. Mastín v. Haley, 61 Mo. 200; McCall v. Atchley, 256 Mo. 54.

— lion. James D. Barnett, Judge. (1) The plat of Smith’s Addition, together with the description of the surveyor and the dedication of streets and alleys, duly acknowledged by J. P. Smith vested in Audrain county the fee simple title to the whole of Western avenue as located on the recorded plat.

— Hon. J. G. Slate, Judge. (1) The prior provisions of the statutes relating to demurrage and fixing a maximum charge therefor were repealed by the Public Service Commission Act. R. S. 1909, secs. 3108-3118; Public Service Commission. Act, Laws 1913, p. 556; 36 Oyc. 1077, 1097; Board of Trade of Kansas City v. Railroad, 1 Mo. P. S. C. 600; State ex rel. v. Shields, 230 Mo. 91; State v. Crane, 202 Mo. 54.

— Eon. Ralph S. Latshaw, Judge. (1) The court erred in overruling defendant’s motion for new trial. State v. Dalton, 106 Mo. 468; State v. Wellman, 253 Mo. 312; State v. Brown, 206 Mo. 502. (2) Error was committed by the prosecuting attorney and his assistant in their argument to the jury which whs highly improper and prejudicial to the rights of defendant. State v. Spivey, 191 Mo. 112; State v. Wellman, 253 Mo. 319; State v. Hess, 240 Mo. 160; State v. Baker, 246 Mo. 376.

<p>1. APPEAL: Abstract: Signed by Succeeding Judge: Imports Verity. Where the statute requires that if a judge who heard the cause shall go out of office before signing the bill of exceptions, “such bill, if . . . shown to the judge to be correct, shall be signed by the succeeding or acting judge of the court where the case was heard,” a recital in the abstract that the bill was tendered to the succeeding judge in open court and was by him “signed and ordered to be made a part of the record therein,” imports verity, and is not overcome by an unsupported motion to dismiss the appeal; and from such recital, in the absence of anything to the contrary of sufficient force to impeach the record, it will be presumed that before the bill was signed by the judge he satisfied himself that it was correct.</p> <p>2. -: -: Documentary Evidence. Exhibits and other documentary evidence, called for in the original bill of exceptions and correctly set forth in the abstract or full transcript, will not be stricken out for the mere reason that they were not deposited with the clerk of the trial court. Section 2083, Revised Statutes 1909, amended in 1903, Laws 1903, p. 105, declaring that “any written or printed matter offered in evidence upon the trial and properly identified and deposited with the clerk, to remain in his custody until after the determination of the cause in the appellate court” may he considered on appeal, is not exclusive, but should receive a rational construction; if given an arbitrary one, private documents used at the trial often could not be preserved for consideration on appeal without a violation of the constitutional rights of their owners.</p> <p>3. TRIAL: Authority of Other Than Regular Judge. Under the statute (Sec. 3977, R. S. 1909) whenever a judge of any division of the circuit court of Jackson county is sick or absent or for any cause is unable to hold any term or part of a term of court, such term or part of the term, may, by request of the judge of such division, be held by a judge of any other division; and record recitals that the regular judge of the division was absent and unable to attend court and had requested the judge of another division to hold court in his stead, and that said judge appeared, tried the cause, rendered judgment, etc., reveal sufficient authority of the judge called in, to try the cause.</p> <p>4. -:--: Nunc Pro Tunc Entries: Correcting Bill of Exceptions. After an appeal has been taken from the judgment, a circuit court retains sufficient power over its own records to authorize it by a nunc pro tuno order to correct a bill of exceptions to the extent that it may speak the truth. Where there is ample record evidence from which the record could be amended to show the truth, namely, that the 'regular judge of a division of the circuit court of Jackson county was absent, that he requested the judge of another division to hold a part of a term for him, that such other judge appeared and tried the cause, rendered judgment, overruled the motion for a new trial and allowed the appeal, the record may be amended after the appeal has been taken so as to show those things, and thereby to demonstrate that the said judge had authority to try the cause.</p> <p>5. -: -:.-: Abstract: Additional by Respondent. Where appellant, though necessarily knowing that the judge of another division who was called in by the regular judge had authority to try the case, omits from his abstract the record recitals showing such authority, respondent may file an additional abstract showing such recitals,- and such additional abstract will become as much a part of the original abstract filed by appellant as if incorporated therein.</p> <p>6. -: -: Absence of Judge: Abstract. It will not be assumed that the regular judge was not absent during the trial before the judge of another division called in by request to try the case, if the abstract contains nothing to support the contention.</p> <p>7. -: -: -:--: Separate Certificate of Clerk. A separate certificate of the clerk of the trial court, showing two orders of adjournment signed by the regular judge, during the trial before a judge of another division who had been called in to hold a part of the term, cannot, under Sec. 2048, R. S. 1909, be considered. Nor is there any statute or rule requiring the respondent to include such orders in his additional abstract.</p> <p>8. APPEAL: Abstract: Piecemeal: Supplying Omissions. An abstract of the trial record cannot be made up by piecemeal; nor will the clerk’s certificate of record entries by which it is attempted to supplement the bill of exceptions and to incorporate therein an alleged error which is purely an afterthought, to which no exception was saved during the trial, and which is no part of the appeal, be considered by the appellate court.</p> <p>9. TRIAL: Power to Call In Another Judge: From Same Circuit. Under section 29 of article 6 of the Constitution declaring that “in any case where the judge cannot preside, the General Assembly shall make such additional provisions for holding court as may be found necessary,” the Legislature had authority to enact a statute authorizing the judge of one division of the circuit court of Jackson county to call in the judge of another division to hold court in his absence or sickness. The legislative power was not restricted to calling in a judge from another circuit.</p> <p>10. -: Absence of Judge: Sufficient Recital. A record recital which states as the reason for the calling in of a judge of another division of the circuit court of the county to try the case “the absence and inability” of the regular judge “to attend and try the case” states a sufficient reason for calling in such . judge.</p> <p>11. -: Abstract: Amendment so as to Show Title. Where appellants did not submit the bill of exceptions to respondent’s counsel for approval before it was signed by the judge, and they did not know until after the abstract was printed that it did not contain the deed of trust made by the common source of title and the foreclosure sale thereunder, the trustee’s deed to respondent, and the other evidence showing title in her, it was in the interest of justice and right for the trial court to amend the bill of exceptions so as to make it show these things, and.then for respondent’s counsel to incorporate them in an additional abstract.</p> <p>12. LIMITATIONS: Notes: Pleading: Burden. In a suit to quiet title in which plaintiff depends upon a foreclosure sale and trustee’s deed under a deed of trust, the defense that the notes were barred by the Statute of Limitations, being a special plea, is available only by an affirmative answer setting up the statute; and having been pleaded, the burden rests upon defendant to prove that the cause of action did not accrue within the time prescribed by the statute.</p> <p>13. -: -: Tolled by Payments. Indorsements before they are barpred, of payments upon, notes, on their face barred by the Statute of Limitations at the time the deed of trust given to secure them was foreclosed, and proof that such indorsements were in the handwriting of the maker, and oral proof that they were intended to apply and were applied as credits, will save the notes and the deed of trust from the operation of the statute.</p> <p>14. -: -: Deed of Trust. If the notes to secure whose payment the deed- of trust was executed are not barred by limitations neither is the deed of trust.</p> <p>15. -: -: Pleading: General Denial. A general denial by reply to defendant’s answer pleading the Statute of Limitations as a defense to notes which on their .face are barred is sufficient to make admissible proof that the running of the statute was interrupted by the indorsement of payments thereon before they were barred and that said indorsements were intended to be and were applied as credits thereon. [Distinguishing Keeton v. Keeton, 20 Mo. 530, decided prior to adoption of Code in 1849, and subsequent cases in which that is incidentally referred to with approval.]</p> <p>16. --: Mortgage: Partition Before Foreclosure Sale: Title of Coparceners. Lands were partitioned during the life of a deed of trust and a judgment entered dividing the lands in kind between certain coparceners and affirming title in them, and afterwards their title was conveyed to the mortgagor, the common source, who remained in open possession for sixteen years, and then conveyed to defendants. Upon the foreclosure of the deed of trust, the mortgagee, who was not a party to the partition suit, became the purchaser and received the trustee’s deed. Held, that the mortgagee, and not the defendants, has the title.</p> <p>17. INSTRUCTIONS: General Assignment. A general assignment that the trial court committed error in giving certain instructions, with no definite statement as to wherein they were erroneous, does not authorize the appellate court or require respondent’s counsel to analyse by comparison and contrast all the ■declarations to ascertain in what particular appellant claims .error was committed.</p>

— Hon. R. G. Ranney, Judge. - (1) The appeal of R. P. Whitesell and Clara Whitesell from the decree incorporating Big Lake Drainage District to this court, in which said appeal is how pending, does not operate as a supersedeas of any proceedings which said district might have’ or take if said appeal was not pending in this- court. Laws 1913, p. 253, sec. 36; Simpson v. County, 173 Mo. 475.

— Hon. James E. Goodrich, Judge. (1) ; That Kansas City is inhibited by the State Constitution from abrogating or departing from any general statute passed by virtue of the general police power oh the State, is-settled by several decisions of the Supreme Court. State ex rel. v. Telephone Co., 189 Mo. 83; State ex rel. v. Yates, 190 Mo. 540; St. Louis v. Meyer, 185 Mo. 583; Ewing v. Hoblitzelle, 85 Mo.::64.;.:St. Louis v. Williams, 235 Mo. 503.

— Hon. David E. Blair, Judge. (1) The right of dower is highly favored in this State and all doubts are resolved in its favor. Nothing except a plain mandate of the statute or a statutory command deduced by necessary implication will suffice to set dower to one side. Blevins v. Smith, 104 Mo. 588; Donaldson v. Donaldson, 249 Mo. 245; Crisman v. Linderman, 202 Mo. 614. And the widow’s right of election is regarded with the same favor.

<p>1. STREET IMPROVEMENT: Judicial Knowledge: Payment by Special Taxation. Courts cannot pretend to be ignorant of matters of public knowledge founded alike in common sense and common experience. They know that the fact that the contractor for street construction must receive payment in special tax bills to be collected by him at his own expense and risk, is an important 'element in the cost of such public improvements; and they cannot assume that the Legislature would permit this burden upon the urban-property owner to be extended to the cash expenditure by the city for the maintenance of its streets, except upon ;the clear expression of its intention to do so.</p> <p>2. -: Contract for Independent Repairs: Invalid. The city of St. Louis has no power under its charter to enter into a contract for the construction of a street pavement whereby it undertakes to bind itself to employ the same contractor to make all repairs which may, during a term of years succeeding its completion, become necessary from causes having no connection with the sufficiency, character or durability of the completed work, and to pay therefor the same price per unit which, by the terms of the contract, was to be paid in special tax bills for the construction.</p> <p>3. -: -: Laying Sewer: Damages for Breach. The charter of the city of St. Louis authorizes the inclusion in an ordinance for the construction of a street pavement “a provision that the work and material must be guaranteed and kept in repair by the contractor doing the work for a term of years to be specified in the ordinance;” and in pursuance thereto, and in order that a sound and durable pavement may be obtained, the city may take from the contractor a .guaranty of the perfection of the work and the materials, and to keep the agreed work in repair, free of cost, for a reasonable term of years; but it has no power to extend its charter authority to make contracts for future maintenance, to include independent work, and such a contract would be void. For instance, a contract for the construction of a street pavement of paving blocks, which obligates the contractor to guarantee the original work for ten years, and to make repairs “made necessary by the construction of sewers” or “from any other disturbance of the pave-265M0.34 ment,” the cost to be paid by the city, did not prohibit the city from taking up the paving for the purpose of putting a sewer in the street and in refusing to permit the contractor of the original paving to repair the pavement, but in these respects is void, and the city is not liable for damages for refusing to permit said contractor to make the repairs.</p>

— Hon. David E. Blair, Judge. It is the well-settled law of this State, that in actions for damages, growing out of assault and battery, and in civil actions generally, any evidence touching the character of either party to the suit, is clearly inadmissible, and cannot be inquired into, unless it is put in issue by the nature of the proceeding itself or has been first supported by the adversary.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The fact that plaintiff Clayton and his assignors accepted payment, monthly, of a part of'the salary '.due them for public service as inspectors (as fixed by the city ordinance) and gave monthly receipts therefor, does not bar the right to recover the residue of the lawful salary.

—lion. R. G. Ranney, Judge. (1) To put the criminal law in force, maliciously . and without any reasonable or probable cause, is wrongful, and if thereby another is injured in property or person, there is that conjunction of injury and loss which is the foundation of an action. Pope v. Pollock, 4 L. E. A. 25; Addison on Torts, p. 65; Cooley on Torts, p. 189.

<p>1. MASTER AND SERVANT: Safe Tools. Generally a master is required to use ordinary care to furnish a servant with safe tools and appliances and to keep them in a safe condition for the performance of the labor required; and the servant is required to use ordinary care for his own safety.</p> <p>2. -: -: Ordinary Care. What constitutes ordinary care in any case depends upon the nature and character of the tools and appliances and the dangers to be encountered in their use.</p> <p>3. -: -: Burden to Show Negligence Upon Servant. To recover damages resulting to the servant from the use of tools, the burden uniformly rests upon him to prove negligence on the master’s part. A case is not usually made out by showing the condition of the tools and the resulting injury; he must go further and show that at the time of the injury an ordinarily prudent man occupying the position of the master would have apprehended that the use of the tools would, by reason of their condition, probably result in injury.</p> <p>4. -: Dull Pick: Apprehension of Danger. Proof that a pick used by a section hand in removing ties from under the rails of a railroad, was dull, and that a sharp pick would have been safer, does not establish negligence on the master’s part in furnishing an unsafe tool; it cannot be said that a dull pick so used is not reasonably safe; whether dull or sharp, a pick is a simple tool which does not under ordinary circumstances arouse apprehension of danger from its use.</p> <p>5. -: -: Danger Not Apprehended by Servant. If an experienced servant, after the continued use of a dull pick in removing old ties from a railroad track, did not apprehend danger from the use of the pick and it did not occur to him that he was liable to injury by its slipping out and his falling backward, the master should not be held to have anticipated its dangerous character and to have kept it sharpened.</p> <p>6. -: -: -: Falling Backward. Nor was the master any the more chargeable with the duty of apprehending that if the pick slipped out the servant would fall backwards than was the experienced servant after having used the dull pick several times without falling.</p>

Francois Circuit Court. — Hon. W. N. Evans, Judge. (1) The indictment is bad in the following particulars: First, there is no positive, direct or specific averment or allegation anywhere in the indictment, that the appellant obtained any money, property or effects from the bank, that is declared in specific and direct terms to be the money or the property or effect of the bank. Ownership of property must be specifically alleged; it will not be inferred.

— Hon. Ralph 8. Latshaw, Judge. (1) The court erred in overruling defendant’s application for a continuance. State v.. Lewis, 74 .Mo. 222. (2) The court erred in permitting the prosecuting attorney in his opening statement to make remarks which were prejudicial to the accused, not founded upon any admissible evidence, and in permitting the prosecuting attorney to make a statement which was argumentative in its nature.

— Hon. J. C. Sheppard, Judge. (1) The ten-year Statute of Limitation does not apply in this case for the reason the proof shows that the land was not in the actual possession of any one and had never been and that the land is wild, unimproved timber land. (2) The law of laches does not apply in this case. The proof shows that the land is wild, unimproved, timber land and not in possession of any one. Russ v. Sims, 169 S. W. 69.

— Hon. Samuel Davis, Judge. (1) It is fundamental, in law and equity, that where a party to an action obtains a rule, order, judgment or decree in his favor, and under or by means of it secures money or property, and afterwards such rule, order, judgment or decree is set aside, or reversed, then such party must restore or return all money .or property received thereunder or thereby.

— Hon. Thomas J. Seehorn, Judge. (1) A judgment entered by agreement of parties where the agreement is procured by fraud, misrepresentation or concealment of the facts by one of the parties, can be set aside 'by proper proceeding in a court of equity, for that purpose. State ex rel. v. Engleman, 86 Mo. 563; Golden v. Whiteside, 109 Mo. App. 579; Trefz v. Ins. Co., 8 Fed. 177; Marine Ins. .Co. v. Haden, 7 Cranch, 336.