Volume 280 — Missouri Reports

<p>Appeal from. Dunklin Circuit Court. — Hon. - W. 8. G. Walker, Judge.</p> <p>(1) An appeal lies from, the preliminary order of the court incorporating a drainage district if the trial court acquired no jurisdiction of the subject-matter. In re Mississippi & Fox River Drain. Disk, 192 S. W. 727.</p>

<p>1. INSURANCE: Governed, by Laws When Policy Was Issued. The laws in force at the time the life insurance policy was issued determines the beneficiary’s right to recover.</p> <p>2. -: Right to Paid-up Policy: Definition of Word Entitled. The word “entitled” is susceptible of more than one meaning. It may be used to mean that a right or title is given or is vested; or that one is furnished with grounds for seeking or claiming with success. In the proviso to the Act of 1895 amending Section 5859, Revised Statutes 1889, where it is stated that “in all instances where three annual premiums shall have been paid on a policy of insurance, the holder of such policy shall be entitled to paid-up insurance, the net value of which shall be equal to that provided in Section 5856,” the word “entitled” means that the holder of such policy had the right to claim or demand paid-up insurance, if he desired to do so, in any case in which he had' contracted otherwise in his policy, but it did not require him to accept paid-up insurance without such election.</p> <p>3. -: -: — : Contract According to Laws of Another State. The proviso contained in the amendment of 1895 to Section 5859, Re- ’ Vised Statutes 1889, did not automatically convert a policy made in accordance with the laws of New York and which contained an agreement for extended insurance in case of default in the payment of the fourth annual premium, into a paid-up policy for a 'definite proportion of the amount of the insurance, where the holder, after such default, did not elect ■ to take such paid-up policy.</p>

Appeal form Adair Circuit Court. — Hon. James A. Cooley, Judge. (1) If the defendant did not have the pistol about his person, especially if he did not have it concealed, he could not he gpilty as charged.. Sec. 4496, R. S. 1909; State v. Hale, 170 Mo. App. 143; 2 Whartons Criminal Law, seo. 1557; Bidentur v. State, 65' Ind. 411; Smith v. State, 69' Ind. 140'. (2) The court erred in that he did not instruct on all the law of the case.

<p>THEFT: Hogs on Range: Sufficient Evidence. Hogs ran loose on the range about a mile from the home of their owner, whose name was Sco'tt; appellant, who lived ten miles away in another county, was seen on Friday morning about a mile from Scott’s home traveling on horseback, and stated he was going to see about some stave timber; Saturday afternoon, two witnesses met him about two miles from his own home, walking down the public roads with five hogs in front of him, and he said that he thought they were Jasper Crow’s; later they were identified as the property of Scott and as some of the hogs that had been running on the range; while the witnesses were talking to him about their ownership, the hogs moved to one side of the road, and appellant walked on; the next morning Scott found the hogs within one hundred yards of where appellant had left them; several witnesses testified that the hogs were stiff and sore, and had the appearance of having been driven a considerable distance; two witnesses testified that they were able to track the hogs for about four miles up to this point, and that the tracks of a man followed them. Held, that the evidence was sufficient to sustain a conviction.</p>

— Hon. Fred Lamb, Judge. (1) Every conveyance of real estate to hinder or defraud creditors either prior or subsequent is clearly and utterly void. R. S. 1909, sec. 2881. (2) It has been held sound doctrine that actual (as contradistinguished from constructive) fraud participated in by both grantor and grantee, will vitiate a conveyance as to subsequent as Avell as to existing creditors. Cole v. Cole, 231 Mo. 260'.. (3) Fraud is rarely ever susceptible of positive proof.

Louis City Circuit Court. — lion. William Kinsey, Judge. . ' Appellants, grandchildren of testator, who died in 1882, cannot be precluded by the Statute of Limitations through adverse possession of respondent’s predecessors in title beginning in 1800, because: (1) Under the will appellants were remaindermen after a life estate.

<p>1. REPUTATION: Cross-Examination of Witness: Defendant a Drunkard. Where a witness for defendant on direct examination was permitted to testify that the reputation of defendant for morality, peace, quietude, truthfulness and general standing in the community was good, it was not error to permit the State’s attorney on cross-examination to ask the witness if defendant had not at one time been a drunkard and had taken the whiskey cure, nor was an affirmative answer to the inquiry prejudicial.</p> <p>2. CONTINUANCE: Absent Witness: To Disprove Immaterial Issue. It is not essential |o a conviction of the crime of abortion that the pregnancy of the woman be established. Therefore, where the second count of the information charged pregnancy of the prosecutrix, but the jury acquitted defendant under that count, but found him guilty upon the first count, which did not charge pregnancy, it was not error to deny his application for a continuance based on the absence of a physician who if present would testify that prosecutrix did not pass a foetus the day after the operation was performed by another physician, as claimed by her, but that he made an examination of the alleged foetus and found it to be merely a blood clot, superinduced by cold and delayed menstruation, and that he so informed her. Such testimony would merely have been corroborative of the fact which the jury by their verdict found.</p> <p>3. FAILURE TO INSTRUCT: No Assignment in Motion. An assignment on appeal that the court erred in failing to instruct that evidence of another offense committed by defendant in the abortion case, namely, the procuring by him of medicines from other - physicians for the use of prosecutrix, should be considered only as bearing on the question of intent, cannot be considered, if the failure' to so instruct is in no manner assigned as a ground of . error in the motion for a new trial and is in nowise preserved in the bill of exceptions.</p> <p>4. ARGUMENT TO JURY: Failure of Defendant to Testify. A statement by the attorney for the State in his argument t,o the jury in a prosecution for abortion that “every fact and circumstance stand absolutely uncontradicted; the only means by which they endeav'or to indirectly contradict the fact of this charge is to bring witnesses in here to lie and vilify the character of this girl; ' that is not bringing testimony here which says there was no trip to Mexico, there wasn’t intercourse, there wasn’t any use of in•struments,” is not such a comment oh the failure of defendant to testify as would warrant a reversal.</p>

\ppeal from Cooper Circuit Court.- — Hon. Hopkins B. Shewn, Judge. The trial court erred in permitting the State to introduce evidence to show good reputation of the State’s witness John Jones in Boone County three years before the trial. This evidence was objected to by defendant’s counsel and exception was taken to its admission by the court.

—Hon. E. S. Gantt, Judge. (1) The description of the lands adjudged to. be recovered in the judgment in the ejectment suit is so vague and uncertain as to 'render the judgment utterly void and subject to collateral attack.

- Louis City Circuit Court.— Hon. Kent K. Koern&r, Judge. (1) The main instruction is too broad and is misleading under the issues and the notice served on the city. It fails to embody an essential element of plaintiff’s case, the question whether a valid notice was served on the city. Walker v. White, 192 Mo. Appi. 13; Burrows v. Likes, 180' Mo. App. 447; Oraton v. Hunt-zinger, 163 Mo.

<p>Appeal from St. Louis City Circuit Court. — Hon. Charles B, Davis, Judge.</p> <p>(1) The information, both in form and substance, fully meets all requirements. Secs. 4529, 4913', R. S. 1909; State v. Moore, 121 Mo. 517; State v. Vaughan, 199-Mo. 108; State v. Collins, 266- Mo. 95; State v. Levy, 262 Mo. 181; State v. Moulton, 262 Mo. 137; State v. Payne, 223 Mo. 112; Ex parte Roberts, 166 Mo. 207. (2) The court correctly and fully instructed the ¡jury on all questions of law necessary for their guidance in reaching a verdict under the evidence. State v. Boyd, 178 Mo. 2; State v. Levy, 262'Mo. 181. (3) The court didl not err in admitting the testimony of police officers that the tools and instruments introduced in evidence were such as were usually employed by burglars. State v. Daly, 210 Mo. 677; Helfenstein v. Medart, 136- Mo. 615; State: v. Mount, ,79 Minn. 121; Rogers on Expert Testimony, secs. 16 and 18, pp. 39, 41; 1 “Wharton’s Crim. Evidence, sec. 403, note 1; State v. ITarrold, 38 Mo. 496. (4) ’ The evidence submitted on the trial is amply sufficient to establish all the elements of the crime charged and fully supports the verdict returned by the jury. State v. Vaughan, 199 Mo. 108; State v. Ooncelia, 250 Mo. 411.</p>

— lion. Guy D. Kirby, Judge. (1) The will of David Caldwell must control the estate and resulting rights in question; and by its terms the same are vested in appellant Kline, dating from the deaths of her associate devisees without living issue, including Frederick D. Smith.

Louis City Circuit Court. — Hon. William T. Jones, Judge. (1) Plaintiff’s contract for furnishing delivery and erection of the grain drier and cooler was a transaction in interstate commerce, and therefore plaintiff did not need a license to do business in Missouri. State ex rel. Hays v. Robertson, 271 Mo. 485; Brownrig v. Waycross, 233 TI. S. 16; York Manufacturing Co., 247 U. S. 21.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) Sections 101, 38 and other sections of Ordinance No. 19991 applied to the building mentioned inthe petition in this case. Cochran v. Preston, 108 Md. 220; Carroll v. City of Lynchburg, 84 Va. 803. (2) The altering, enlarging, raising, building upon and repairing of said building, as described in the petition, constituted a violation of said sections of said ordinance.

— Hon. O. A. Lucas, Judge. (1) The court erred in overruling the demurrer of the defendant milling company at the close of plaintiff’s evidence, and in refusing to peremptorily instruct the jury to return a verdict for said defendant, a. Under the pleadings and the evidence, the milling company was not guilty of negligence.

— Hon. Darnel E. Bird, Judge. (1) The court erred in giving instruction number 1 asked by plaintiff. It is erroneous in that it requires the motorman to use the “highest practicable degree of care” both to discover plaintiff, and to stop the car. It attempts to submit' the case to the jury on the “last chance” or humanitarian theory only, and in such cases “ordinary care” is the only care required.

<p>1. OFFICER: Removal. If an official possesses the requisite statutory qualifications, he can be removed from office only for misconduct connected with the performance of official duties, except when some transgression apart from those duties is made by statute a cause for removal.</p> <p>2. -: -: Prosecuting Attorney; Disbarment. Suspension-from practice of the law is *hot by statute made a cause for removing a prosecuting attorney from his office.; but the conduct for which he was suspended may be a cause.</p> <p>S. -:-:-:-¡Continuance During Appeal. If it be admitted that a judgment of' temporary disbarment remains effective during an appeal,- its effect is only to disable the attorney to practice law during the period of suspension, unless the judgment is sooner reversed, and does not determine the question whether as a result of his suspension he can be ousted from office as prosecuting attorney.</p> <p>4. -: --: License. A temporary suspension to practice law is ñ’ot equivalent to a total revocation of a license to practice. The effect of the suspension is to simply deprive him of the use of his, license during the suspension period.</p> <p>5. -:-:-: Suspension for Year; Statutory Construction. A temporary suspension of an attorney from the practice of the law for one year, does not subject him to ouster from his office as prosecuting attorney. The statute, does not pronounce any such penalty as a result of a judgment of a temporary suspension, and therefore the question of whether or not such penalty must follow must be determined by construction; and in the construction the fact that the alleged loss or penalty is one of undue and disproportionate hardship must be considered, as must also the fact that the proceeding to oust him is penal in its nature, as is also the disbarment statute, and is not therefore to he extended beyond its terms.</p>

<p>The majority opinion of the Springfield Court of Appeals, 187 S. W. 586, affirming the judgment in this case, is approved.</p>

Prohibitio.n. (1) It is beyond the power of any court to make rules or take action which comes into collision with either the organic or statutory law. State ex rel. v. Withrow, 133 Mo..522; Gormerly v. MeGlynn, 84 N. Y. 284;. Works on Courts andl Their Jurisdiction, pi. 177; State ex rel. Partridge v. Lewis, 71 Mo. 170; State v. Underwood, 75 Mo. 230; State ex rel. v. Gideon, 119 Mo. 94; Calhoun v. Crawford, 50 Mo. 458; Purcell v. Railroad, 50 Mo. 504; 4 Am. & Eng. Elncy.

<p>1. FORFEITURE: Oppression in Office: Jurisdiction of Court of Criminal Correction. The statute giving the Court of Criminal Correction of the City of St. Louis “exclusive jurisdiction of all misdemeanors . . . the punishment whereof is by fine or imprisonment in the county jail or both, or by any forfeiture,” gives to said court jurisdiction to try a police officer charged with oppression in office, and to punish him by forfeiture of his office, in addition to fine or imprisonment. The words “or by any forfeiture” cannot be held to apply simply to forfeiture of money, but confer jurisdiction to try a-misdemeanor punishable by any kind of forfeiture.</p> <p>2. -:--: Misdemeanor. Oppression in office, though punishable by forfeiture of office, is a misdemeanor, made so by statute (Sec. 1483, R. S. 1879), declaring that every person guilty of wilful and malicious oppression in his official capacity shall be guilty of a misdemeanor; and since another statute gives the Court of Criminal Correction of the City of St. Louis jurisdiction to try, misdemeanors, that court has power to try a police officer charged with oppression in office, although the -statute fixes, as the punishment for such offense, forfeiture of office, in addition to fine or imprisonment in jail.</p> <p>3. -: -: Special Classification of Offenses: By Punishment Prescribed. If an offense is classified as a felony or as a misdemeanor by the statute which. creates it, its character as the one or the otlier is determined thereby, regardless of the punishment prescribed. Even though by the common law definition, or by one given. in a statute declaring generally what elements are required to constitute a felony and what a misdemeanor, it is differently classified, the offense nevertheless falls within the class by which -it is designated in the statute creating it. Since oppression in office is classified as a misdemeanor, it is not to be held a felony because the punishment prescribed is forfeiture of office, in addition to fine and jail sentence.</p> <p>4. -: -: Misdemeanor: Infamous Crime:, Constitutional Limitation. Oppression in office is by statute an “infamous crime." The constitutional provision empowering the Legislature to enact laws “excluding from the right of voting all persons convicted of felony or other infamous crime, or misdemeanors connected with the right of suffrage,” did not prohibit the Legislature from classifying infamous crimes disconnected from suffrage as felonies or misdemeanors.</p> <p>5. -: -: Punishment. Forfeiture of office is not the only punishment prescribed by the statutes for oppression and official misconduct; ifi addition, the culprit may be punished by fine and imprisonment in jail. The words of the statute (Sec. 4416, R. S. 1909) declaring that every officer convicted of said offense, “where no special provision is made for the punishment,” shall be punished by fine of five hundred dollars or imprisonment in county jail for one year, mean where no fine or imprisonment is provided for, and do not exclude from the operation of the section an official misdemeanor merely because forfeiture of office attends it, but make possible the imposition of a fine or imprisonment provided by other sections, in addition to forfeiture.</p> <p>6. -: -: -: Disqualification to Vote. Deprivation of the right to vote or hold office is not such punishment as, under the statute, determines the grade of the crime or the jurisdiction of the court.</p> <p>7. -: ■ — ——: • — ■—^—: By Fine or Forfeiture. A statute which gives a court jurisdiction of all misdemeanors “the punishment whereof is by fine or imprisonment in the county jail or both, or by any forfeiture,” gives the court jurisdiction of a misdemeanor the punishment whereof is by fine or imprisonment in jail or both tmd by forfeiture of office.</p> <p>8. -: -: -: -: The Words “Or” and “And:” Interchangeable. The word “or” used in a statute will be construed to mean “and” in determining the jurisdiction of the court, where a contrary construction would be to defeat the obvious intention of the Legislature.</p>

— Hon. G. H. Skinker, - Judge. (1) Tlie assignee of a written contract for tlie sale or purchase of land can maintain in his own name a suit for specific performance. 36 Cyc. 758. (2) Specific performance is not one wholly resting in the discretion of the court, but one to be exercised by a just and reasonable discretion and not in an arbitrary or caprim ious manner.

Louis City Circuit Court. — Hon. Leo 8. Rassieur, Judge, (2) The circuit court had no jurisdiction to issue execution No. 52, and said execution will deprive appellant of his property without due process of law, in violation of both the State and Federal Constitutions. Grignon v. Astor, 34 U. S. 338; Grignon v. Astor, 43 IT. S. 338; Scott v. Toledo, 3G Fed. 385; Tick Wo v. Iiopkins, 148 U. S. 667; Leper v. Texas, 139 U. S.' 462.

Louis City Circuit Court.— Hon. Kent K. Koerner, Judge. (1) The undisputed evidence in this case showed' ‘that defendant Telephone Company, permitted its wires to remain, unused, on the poles mentioned in evidence for.a long time, at least two months; that one' of the wires was broken eight days before the accident to plaintiff’s husband, and the end coiled around one of the poles; the next day the broken end was seen, gathered in a bundle on the ground at the footi of the…

— Hon. KimbroughStone, .Judge. (1) During slavery there could be no such thing as a marriage between the plaintiff’s mother and Liouis Nolan. Reeves on Domestic Relation, 341; Howard v. Howard, 6 Jones (51 N. C.) 235 and 236; Malinda v. Gardner, 24 Ala. 719-724; Stewart v. Muchandler, 65 Ky. 278; Brown v. Becket, 6 D. C. 252; Johnson v. Jolmson, 45 Mo. 535; Keen v. Keen, 184 Mo. 373.

<p>1. REFERENCE: Law Case: Appellate Practice. In an action at law, tried by the court without a jury and without instructions asked or given, in which the report of the referee was confirmed, to support which there was substantial evidence, the appellate court is concluded by the judgment rendered, except as to errors committed in receiving or rejecting evidence.</p> <p>2. -: -: -: Act of 1919: Retrospective Operation. The Act of 1919, Laws ,1919, page 213, requiring the appellate court, in all cases in which a referee has been appointed and made a report, upon exceptions properly preserved, to review the evidence and findings of fact and conclusions of law of the referee and the trial court, expresses no intention on its face that it shall have a retrospective operation,’and therefore it does not apply to appeals taken before it went into effect.</p> <p>3. -: Contract and Quantum Meruit: Measure of Recovery. Where plaintiff sued in his first count on an oral contract and in the second on quantum meruit, for services, rendered, and defendant’s answer set up a different contract,.and the evidence fails to show that either contract as alleged was made, the measure of defendant’s liability is not limited by the terms of either, but having proven that his services were rendered at the special instance and request of defendant plaintiff is entitled to recover on quantum meruit the amount of their reasonable value, as established by the evidence.</p> <p>4. EVIDENCE: Exhibit: Materiality of Error Must Be Pointed Out. If appellant considers that a statement in writing signed by a witness should have been admitted in evidence for the purpose’ of impeachment, it is his duty to point out from the record the testimony showing its materiality, the ruling thereon and the witness’s testimony in explanation of the same; otherwise, the assignment will not be ruled.</p> <p>5. -: Costs: Apportionment. Where plaintiff sued on two counts, on a contract in the first and on quantum meruit in the second, and defendant set up a different contract in his answer to the first and a general denial to -the second, and a counterclaim to both, and neither contract was established by the evidence and little evidence concerning either was adduced, and the main costs incurred were due to the defenses and counterclaims to both counts, and the trial resulted in a judgment against plaintiff on the first count and a substantial judgment for him on the second, and against defendant on both of his counterclaims, there is no basis for apportioning the costs, but they should all, including the referee’s and the stenographer’s allowances, be taxed against defendant.</p>

Certiorari. (1) It i.s well settled that a canse must be heard and determined in the appellate court upon, the same theory as that upon which it -was tried in the court below. St. Louis v. Wright Contracting Co., 210 Mo. 502; Walker v. Owen, 79 Mo. 563; Minton v. Steele, 125 Mo. 181; Dice v. Hamilton, 178 Mo. 81; Meyer Bros. Drug Co. v. Bybee, 17:9 Mo. 354.

<p>1. MANDAMUS: When Maintainable. In order to warrant control by mandamus there must be an existing, clear, unconditional legal right in relator and a corresponding present, imperative, unconditional duty upon the part of respondent, and a default by respondent therein.</p> <p>2. -: -: Power of Public Service Commission: Interlocking Plants. The Public Service Commission has power to compel the installation by railroad companies of interlocking plants at proper places and on terms which are just and reasonable. But where .the order of the Commission requires one of two companies to do the actual work of constructing the interlocking plant, and assesses 75 per cent of the cost against the other and says its portion of the cost shall be paid in monthly installments, no duty rests upon such other company to pay until the plant is constructed, and as the plant has not been -constructed it is not in default and the court cannot by mandamus compel it to construct the plant; but the object oft the order is to be attained by a writ against the company directed to make the improvement.</p> <p>3. -: Railroad Interlocking Plant: Right to Enter Upon Right-of-Way. Thq order of the Public Service Commission directing two railroad companies to construct and maintain an interlocking plant at a designated point, and requiring one of them to do the actual work of construction, is sufficient to give said company access to the right-of-way of the other for the purpose of constructing the plant, and no express mention of its right to enter upon the right-of-way for that purpose is necessary; and therefore it is not necessary that such other company be made a party to a writ of mandamus which seeks to compel the construction of the plant.</p> <p>4. -: -: Apportionment of Costs: Contrary to Contract: Judicial Matters Between Themselves. An order of the Public Service Commission directing two railroads companies to construct an interlocking plant, and requiring one of them to do the actual work of construction, and apportioning 25 per cent of the cost to it and 75 per cent to the other, and requiring such other to pay in monthly installments, being reasonable, must be obeyed, and the one directed to do the actual work of construction will be compelled by mandamus to proceed to make the improvement, but the other is not in default until a monthly installment is due; but it cannot have the order annulled on the ground that there was at the time a subsisting contract between the companies by which they were to share the costs equally, but the question of the apportionment of the costs is more appropriately a matter between the two companies, which may be adjudicated in a proper legal proceeding.</p>

— Hon. Samuel ID avis, Judge. (1) Under the stipulation introduced hy the plaintiff, the freight on each shipment mentioned in the petition was paid by the consignee and not by the plaintiff. Any damages sustained by reason of any overcharge on such shipments was sustained by the consignee, who paid the freight, and not by the plaintiff, and respondent is not the proper party to complain. International Coal Co. v. Railroad, 230 U. S. 184; Hoover v. Railway Company, 156 Pa.

<p>1. HABEAS COKPUS: Jurisdiction. Where a party who is in confinement under judicial process is brought before another court on writ of habeas corpus, the primary inquiry is whether the court issuing the process under which the party is detained had jurisdiction of the case and acted within that jurisdiction in issuing the process; and if so, mere irregularities or errors of judgment in the exercise of that jurisdiction must be disregarded, and the writ denied.</p> <p>2. -: -: Juvenile Court: Child Previously Committed by Court of Another State. Where a child sought to be released by writ of habeas corpus is held in custody by respondents in obedience to legal process of a juvenile court, and the validity of the Juvenile Court Act is not assailed and no defect in the proceedings in the juvenile court which would render its process void is pointed out, the fact that the juvenile court of another state had on a prior occasion made, an order appointing petitioner guardian of the child and awarding the child to petitioner’s custody, does not affect the jurisdiction of the Missouri court, for the jurisdiction af the Missouri court is not created or destroyed by anything that occurred in the court of the other state, and the writ must be denied.</p> <p>3. -: -: -: -; Full Faith and Credit: Error. If the proceeding of the court of another state whereby the custody of the neglected child had been awarded to petitioner were one coming within the full-faith-and-credit clause of the Federal Constitution, it would not oust the Missouri Juvenile .Court of jurisdiction to commit the child to respondents, but present merely a question for the Missouri court’s determination, and if it erred in its ruling thereon the errbr could be corrected only by the court which made the error, or by a direct appellate proceedings. Habeas corpus cannot be substituted for an appeal or writ of error.</p>

— TLon. J. D. Barnett, Judge. (1) The court erred in giving the instruction for the defendant placing the burden of proof upon plaintiff to show that the violation of the statute, in failing to give signals, was the cause of the accident. McNulty v. Railroad, '203 Mo. 477; Green v. Mo. Pac. Ry. Co., 192 Mo. 142; Huckshold v. Ry. Co., 90 Mo. 556; Kerr v. Bush, 198 Mo. App. 611.

Louis City Circuit Court. — Eon. Rhodes E. Cave, Judge. (1) The charter is the supreme law of St. Louis, deriving its authenticity from the source of all power, the votes of the people, and, by its adoption, all inconsistent laws, constituting part of either the ordinances or the previous charter, are repealed.

— Hon. Sterling H. McCarty, Judge. (1) Plaintiff positively failed to sliow (a) lack of consideration, (b) that Grace R. Tindle conveyed the property to hinder, delay or defraud her creditors, (c) that defendants had any knowledge of any fraud on the part of Grace R. Tindle or any facts or circumstances from which there could fairly be deducible any of the elements necessary to cancel and set aside the deeds.

Louis City Circuit Court.' — Ron Gust. A. Wurdeman, Judge. (1) The court erred in ordering partition. The court cannot permit property to he partitioned in violation of the terms of a will.

<p>1. CONSTITUTIONAL QUESTION: Reexamination. It is the duty and within the power of courts to correct their own errors in a subsequent appeal in the same case, or in another involving the same question; hut unless it appears to the court that its previous ruling sustaining the validity of a statute is radically . wrong, the same constitutional question is no longer open for consideration.</p> <p>2. -: Compensation of Probate. Judge: Increase. The compensation of probate ■ judges is within the purview of the constitutional inhibition against an increase in an officer’s compensation during his term.</p> <p>3. -: -: -: Statute: Effect of Proviso. While the effect of the proviso added in 1895 to present Section 10695, relating to the compensation of probate judges, was to restrict the preceding portion of .the section, it became upon its adoption as much a substantive and operative portion of the original section as if incorporated therein when the latter was first enacted, and the consitutional inhibition against an increase in an officer's compensation during his term likewise applied to it.</p> <p>4. —--; -; paid by Fees: Inhibition Against Increase. The constitutional inhibition against an increase in an officer’s compensation during his term, is. applicable to an office to which no salary is attached. The test of the application of the inhibition is not the manner in which the officer is paid, but2 the nature of his official tenure and the character of the duties performed for which the fees are charged.</p> <p>5. -: -: Fees in Excess of Designated Amount. Nor is the inhibition less applicable because it does not apply until the fees collected exceed a designated amount, if the statute is, general and includes within its provision a 'dearly defined class of officers.</p> <p>6. COMPENSATION OF PROBATE JUDGE: Equal to Circuit Judge’s Salary. The statute (Sec. 10695, R. S. 1909) declaring that whenever the amount of fees collected for any one calendar year by or for any»probate judge in any county shall exceed “a. sum equal to the annual compensation provided by law for a judge of the circuit court having jurisdiction in said county,” the excess less ten per cent, shall be paid into the county treasury, ■ by using the words “compensation provided by law for a judge of the circuit court” meant the circuit judge’s salary for judicial services, and did not mean to include emoluments received by the circuit judge for other services, such as his services as jury commissioner.</p> <p>7. STATUTE: Interpretation: Context: Purpose. Words in a statute take color and force from their setting, and in their application their context and the general puruose of incorporating them in the statute should be considered.</p>

<p>For the reasons stated in State ex rel. v. Imel, ante, page 554, the judgments in these two cases are affirmed.</p>

— Hon. Thomas B. Alim, Judge. (1) Plaintiff’s instruction on the measure of damages' was erroneous in that it permitted the jury to take into consideration “all the facts and circumstances detailed in evidence” in determining the measure of recovery.

— Ron: TUowúas B. Buckner, Judge. (1) The court erred in refusing to give the instructions asked by the defendant city, (a) No proper notice having been served upon Kansas City, plaintiff was not entitled to more than nominal damage in any event. The service of a proper notice is- a condition precedent to the right of- a plaintiff to recover in a suit of this kind. Reid v. Kansas City, 195 Mo. A-pp-. 457; Jacobs v. St. Joseph, 127 Mo. App. ^672.

Certiorari. (1) The respondents respectfully move the court to dismiss or quash the writ of certiorari herein, for the reason that relator has wholly failed to comply with Rule 35 of this court, in that relator has not served or filed herein printed abstracts and briefs as required by said riile. State ex rel. v. Robertson, 181 S. W. 987.

<p>]. APPELLATE PRACTICE: Action at Law. In a review of an action at law tried without a jury in the circuit court, wherein the judgment is assailed on the ground that it was contrary to the facts developed at the trial, the chief concern of the appellate court is to ascertain whether there is any substantial evidence to support the judgment.</p> <p>2. EVIDENCE: Admission Without Objection. In an action at law appellant cannot on appeal complain of the admission of a memorandum in evidence which was admitted without objection.</p> <p>3. PLEDG-E: Surrender of Collateral: Substantial Evidence. Where the trial court, sitting as a jury in a law ease, has found that the ten thousand shares of stock, which is the subject of the controversy, were pledged to the plaintiff bank as collateral security for a loan and that the bank had never surrendered its lien thereon, and there is substantial evidence in the record to support the finding, the appellate court is not at liberty to rule that the evidence to support the finding was not sufficient. In such case it is of small concern with the appellate court whether, if it were' trying the case cLe novo, it would have made the same or a different finding.</p> <p>4. LIMITATIONS: Conversion: Finding of Fact. Where there is substantial evidence that the stock, pledged to plaintiff to secure a loan, was delivered to defendant within five years before the suit was brought and that he did not convert it to his own use until after its delivery to him, it cannot be ruled on appeal that the action for damages for the wrongful conversion of the stock was barred by limitations.</p> <p>5. CONVERSION: Nominal Damages. Testimony by defendant in a deposition on a former occasion, introduced in evidence by plaintiff and uncontradicted by him, th&t the properties of- a railroad company, whose entire capital stock was pledged to plaintiff to secure a loan of $700,000, was worth one million dollars, is sufficient to support a judgment for seven hundred thousand dollars in a suit for damages for the wrongful conversion of said stock to his own use.</p> <p>6. AMENDED ANSWER: Discretion of Court: After Judgment. The question of permitting amended pleadings to be filed is one resting largely within the discretion of the trial court; and where defendant did not ask permission to file his second amended answer until about three months after the court, sitting without a jury, had rendered judgment for plaintiff, and the answer, as offered, set up new matters of defense not pleaded in the answer upon which the case was tried, the court did not abuse its discretion in refusing to permit the answer to be filed, although at the time permission was asked a motion for a new trial was still pending.</p>

— lion. R. A. Pearson, Judge. (1) Mrs. Middaugli was, at the time of the execution and delivery of the deed to her and her husband, George Middaugli, the equitable owner of the real estate therein conveyed, and said deed did not create in them an estate by the entirety. 13 R. C. L. 1110; Sprinkle v. Spainhour, 25 L. R. A. (N. S.) 167; Moore v. Moore, 12 B. Mon. (Ky.) 644; Harrison v. McReynolds, 183 Mo. 533; Snyder v. Elliott, 171 Mo. 362.

— Hon. David H. Harris, Judge. (1) The court erred in giving Instruction 12 for the reason that it erroneously set forth the law as applied to the facts in this case in the following particulars: (a) Said instruction thus stated the law of th quantum of force and resistance defendant was justified in using.

Mandamus. (1) “No county . . . shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose.” Mo.