Volume 288 — Missouri Reports

— Eon. Alonso D. Burnes, Judge. (1) Sections 11 and 12 of Article 10, of the Constitution of Missouri, govern in the matter of school taxes as well as other taxes by counties, cities and towns, etc. The limitations in those sections are self enforcing and require no legislation to enforce them, but the provision for an increase of the limitations does require legislation to enforce such increase.

Prohibition.. (1) The judges of-the circuit court exceeded their jurisdiction in issuing a subpoena duces tecum requiring the production in evidence of the letter written to the Complaint Board in a trial of a libel suit pending in the circuit court and in threatening to enforce that part of the subpoena duces tecum requiring the production in evidence of said letter after the St. Louis Court of Appeals had held that said letter was a privileged communication under the law…

<p>1. Justice' Court: Attachment: Entrance of Appearance. Where a defendant, sued by attachment in a justice of the peace court, took an appeal to the circuit court from a judgment rendered against him by the justice,' he thereby entered his appearance in the case in that court and was in court for all the purposes of his case in the circuit court, even though in the latter court he attempted to appear specially in a motion to discharge the garnishment and dismiss the case, and after it was overruled attempted to appear specially in a plea in abatement. After be had entered his appearance by taking such appeal, these motions were utterly futile for the purpose of attacking the jurisdiction of the justice court over his person or his property brought before that court by garnishment under the writ of attachment.</p> <p>2. -: -: Jurisdictional Amount: Voluntary Credit: Tort. Where plaintiff’s claim, in a suit before a justice of the peace, is based upon a tort, the jurisdiction of the justice court is determined by the amount of the demand as filed, and it is immaterial that the plaintiff’s loss exceeded in amount the limit of the justice’s jurisdiction. The filing of the claim is a voluntary credit of all in excess of its amount and a waiver by plaintiff of his right to recover therefor, to which defendant cannot object.</p> <p>3. -: -: Evidence. In a suit by attachment based upon the ground that the damages sued for arose from the commission of a felony, where it appeared from the evidence that defendant was head stableman for plaintiff and lived over plaintiff’s stables: that he was used to receiving money from plaintiff’s drivers and placing it for safe keeping in sealed envelopes in a safe in the office of the plaintiff’s stables where he worked and to which he had 'access at all times; that on the occasion in question he had received money and checks in excess of $500 and put them in the safe; that he was the only one present-having keys to the inner door of the safe; that a vicious watch dog was loose in the stables at night that would not permit strangers to enter; that the regular watchman was on duty from five o’clock in the evening before until after five o’clock the next morning and did not leave the 'premises during the night, and saw no one except defendant about the place, but did see him come down to the office about five o’clock on the morning the money was missing, which was an hour earlier than he usually came; that a police officer saw defendant about six-forty-five in the morning trying to open the safe and afterwards saw him running away from the stables and asked him what was the matter and he said that the money was gone; that defendant gave several reasons for opening the safe; that his rooms were searched but none of the money was found. Held, that there was sufficient evidence to .make a case for plaintiff both on the merits and on the attachment.</p>

— Hon. A. W. Walker, Judge. (1) The testimony of Wisdom Burton and other witnesses’ testimony as to transactions had by Dr. Dinwiddie with and for Martha Harlow was incompetent and tended to prejudice the jury against him and was offered for that purpose only.

Louis City Circuit Court. — Hon. Robert W. Hall, Judge. (1) Where “the facts are such that all reasonable men would be likely to draw from them the same inferenees, the question of negligence is one of law for the court.” In this case the only inference that reasonable men could draw from the facts in evidence is that this defendant was not guilty of negligence. Becke v. Railroad Co., 102 Mo. 551; Daneschocky v. Sieble 195 Mo. App. 470.

— Hon. Fred Lamb, Judge. (1) The death of Charles F. Boward occurred in 1900 and the petition for sale was not filed until 1918, hence the matter was so stale that the court should not have considered the petition for sale. Gunby v. Brown, 86 Mo. 253.

<p>Appeal from St. Louis Circuit Court. — Hon. Vital W. Garesche, Judge.</p> <p>Appellant lias filed no brief herein. Scire facias is the proper remedy to enforce recognizance after forfeiture. 6 C. J. 1057-58; State v. Caldwell, 124 Mo. 509; State y. Hoeffner, 124 Mo. 488.</p>

<p>1. ACCIDENT INSURANCE: Burden of Proof. The burden is on plaintiff, in a suit on an accident insurance policy against bodily injuries effected directly and independently of .all other causes, through external, violent and accidental means, to show that the insured accidentally received such injuries and that they caused his death directly and independently of all other causes.</p> <p>2. -: Inference from Fall. The presence of a fresh bruise upon the insured’s forehead will authorize the jury to infer a fall; but it does not necessarily follow that such fall was accidental, where there is positive and uncontradicted evidence that the insured was in a diseased condition and that a cerebral hemorrhage took place, and the fall may as readily be attributed to the hemorrhage as to an accident.</p> <p>3. -: -: Accident: Proximate Cause: Inference Upon Inference. It is not 'sufficient that because of a fresh bruise upon the insured’s forehead an inference may be drawn that he fell and that the fall was accidental, there being no eye witnesses; in order to permit a recovery on an accident policy, a further inference that the fall was the proximate cause of his death must be indulged, and that inference cannot be allowed, for that would be equivalent to establishing a fact by building inference upon inference.</p> <p>4. -; -: Cerebral Hemorrhage. The blood pressure of insured, sixty years of age, had become high. In the evening he visted some friends, who resided in the third-story of an apartment, and dined with them. Something after eight o’clock he bade them goodnight and started down the two flights o£ stairs. A few minutes later he was found on his knees at the foot of the stairs, holding a door knob and trying to raise himself in that way, his only words being, “My eye, my side; don’t try to lift me.'’ He then lapsed into apparent unconsciousness, was removed to a hospital and died in about four hours. There was a slight bruise or abrasion on his forehead near the right eye. A postmortem examination showed no injury to the brain or its coatings, but did reveal a severe hemorrhage in the brain; and a later autopsy tended to show arterial sclerosis in an advanced stage, enlargement of the muscles of the heart and chronic Bright’s disease, but no evidence of injury to the skull or the brain or the membranes covering the brain. Held, that the bruise on the forehead does not exclude the hemorrhage as the cause of the fall, and the undisputed evidence being that cerebral hemorrhage caused his death and there being no evidence that external violence caused injury to the brain or brain covering or the hemorrhage, the inference that the fall was caused by accident and that it. was the proximate cause of his death is purely speculative, and a demurrer to the evidence should have been sustained.</p> <p>5. —--: Inference Upon Inference. The rule that inference cannot be builded upon inference to establish a definite and ultimate fact necessary to be established in order to sustain a verdict, applies to actions on accident insurance policies.</p>

— Hon. W. S. G: Walker, Judge. (1) Do tlie undisputed facts constitute an abandonment, a modification or a substitution of the so called Monday sale for the one claimed to have been made on Saturday? It is our contention that they do, and if so, the judgment can not stand, for it is the law that under such a state of facts the plaintiff must declare on the modified or substituted contract and predicate recovery thereon. Carman v. Harrah, 182 Mo.

Louis City Circuit Court. — -Hem. Wilson A. Taylor, Judge. (1) The charter of the City of St. Louis makes uo provision for notice or hearing in the establishment of taxing districts for sewers, and no notice was given or hearing had upon the question of benefits in the establishment of the taxing district for Baden District Sewer No. 2. Therefore, the assessment is invalid, being violative of the due process clause of the Federal Constitution.

<p>Appeal from Texas Circuit Court. — Hon. L. B. Woodside, Judge.</p> <p>(1) Even a cursory reading of this record will demonstrate plaintiffs’ right to reformation and foreclosure as against Felkins and wife. But even if that were not true, Edwards could not object unless he acquired title under the tax suit. _ Therefore the validity of that tax suit is the sole question here for consideration. (2) Again: if the tax judgment was without jurisdiction as to Felkins, the doctrine of innocent purchaser could not make it good as against plaintiffs. The doctrine of caveat emptor applies with its full force insofar as defects in the tax proceedings are concerned. (3) “The order (of publication) can only be made by strictly complying with the statute; for, in all cases where constructive service is substituted for actual notice, strict compliance is required.” Schell v. Leland, 45 Mo. 293; Lumber Co. v. Keener, 217 Mo. 529. (4) The petition in the tax suit was filed and became part of the record proper in that case when it was deposited ,with the clerk and by him received to be kept on file. State ex inf. v. Clardy, 267 Mo. 383; State ex rel. v. Broadns, 245 Mo. 137; State ex rel. v. Wilson, 216 Mo. 292; State v. Hockaday, 98 Mo. 593; Dawson v. Cross, 88 Mo. App. 299; 3 Words & Phrases, 2764; 8 Ency. PI. & Prac. 923 et seq. In this tax suit, the petition was not only deposited and filed but at that time had written thereon direction to issue, “Sum to Texas Co.”; and in accordance therewith the summons was issued by the clerk and by him delivered to the sheriff and was in the sheriff’s hands at the time the allegation of non-residence was entered. Under any view, the suit was pending and this petition was part of the record. R. S. 1909, sec. 1756. (5) This then being true, every clerk, officer or person was prohibited from amending or impairing this petition “without the order of such court.” R. S. 1909, sec. 1863. And an amendment without such order will not be considered. Elliott v. Railroad, 157 Mo. App. 522; Rush v. Railroad, 157 Mo. App. 512. (6) An order of publication not based upon the allegation of non-residence or other cause in the petition or an affidavit is a nullity and gives the court no jurisdiction. R. S. 1909, sec. 1770; Tooker v. Leake, 146 Mo. 433; Wright v. Hink, 193 Mo. 130; Cummins v. Brown, 181 Mo. 711. It is the allegation of non-residence or other cause in the petition or affidavit, rather than the fact of non-residence or other cause, which gives jurisdiction to the clerk to make'an order of publication. State ex rel. v. Clarkson, 88 ¡Mo. App. 553; Tooker v. Leake, 146 Mo. 429; State ex rel. v. Wessel, 237 Mo. 604. (7) Thus far- we have treated the allegation of non-residence as if it now appears to be in the petition. We submit, however, that notwithstanding the fact they are on the same paper they are separate and distinct and so appear on their faces. It cannot, therefore, support an order of publication as an allegation, because it is not in the petition; neither can it do so as an affidavit, because it is not verified. (8) Whatever view may be taken of this case, Millie Felkins has an inchoate right to dower in this land, a substantial right, which was not barred by the tax suit; and plaintiffs as to it at least have a right to reformation and foreclosure. Blevins v. Smith, 104 Mo. 583; Hilton v. Smith, 134 Mo. 511.</p> <p>(1) Defendant Marion Edwards bought the land in question May 17,1918, for a valuable consideration, without notice, at a time when the record showed the title of his grantor to be absolutely good, and received the first notice of plaintiff’s claim when he was served with summons in this action in October thereafter. (2) At the time defendant bought the land from Hamilton the record showed title in Hamilton. The records of a court import absolute verity. This includes the date when a suit is filed, the contents of pleadings and documents, and parol evidence is not admissible to contradict such records in a collateral proceeding. This is one of the conclusive presumptions of the law. Such records are conclusively presumed to have been correctly made and are not open to attack by oral testimony. Greenleaf on Evidence (16 Ed.), p. 115, sec. 15; 17 Cyc. 501; Davidson v. Rst. & Inv. Co., 226 Mo. 29; Cook v. Penrod, 111 Mo. App. 128; Freeman v. Thompson, 53 Mo. 190. (3) The purchaser at a judicial sale need only look to the regularity of the execution, the judgment and the record as then existing, and if these are regular on their face and show jurisdiction he gets title, and neither his title nor that of his grantee can be overthrown, or the jurisdiction of the court impeached, in a collateral proceeding by proof of facts which the record did not disclose at the time of the sale. Murray v. Laften, 15 Mo. 625; Waddell v. Williams, 50 Mo. 222; Abbott v. Doling, 49 Mo. 304; Mc-Dermott v. Gray, 198 Mo. 282. (4) As against collateral attack, if regularity exists on the face of the record at the time of the purchase, the purchaser is absolutely protected. Charlie v. Kelley, 120 Mo. 134; Wellshear v. Kelley, 69 Mo. 343; Kane v. McGowan, 55 Mo. 196; Gibbs v. Southern, 116 Mo. 204; Brawley v. Ranney, 67 Mo. 280; Avery v. Good, 114 Mo. 290; Rugle v. Webster, 55 Mo. 247; Lumber v. Carroll, 255 Mo. 357.</p>

<p>1. DEED: Mistake as to Legal Effect. A widow, with minor children and in great mental distress, was advised hy her brother-in-law that, if she would convey her real estate to him and let him convey it back to her, she would have entire ownership, control and right of disposition during her life, and upon her death it would go directly to her children; and in accordance with such advice she conveyed the property to him for life, with remainder to the heirs of her body. The deeds were without consideration, and made in the honest belief that if made she could dispose of the property at any time to secure means to support and educate her children. In a suit by her to cancel the deeds, a guardian ad litem, was appointed for the defendant children, and he alone appeals. Held, that the deeds should be set aside.</p> <p>2.--: -: Interest of Unborn Remaindermen. And such deed should be set aside, although said widow may yet have other children who will survive her and become remaindermen. Since all the living children are made parties, cancellation of the deeds will not be denied on the possibility that there may be future issue not now in esse.</p>

<p>1. PETITION: Cause of Action: General Demurrer. In the face of a general demurrer charging that the petition does not state a cause of action, all facts properly pleaded, and all inferences of fact that may fairly and reasonably be drawn therefrom, must be taken as true.</p> <p>2. .-: -: Contract of Sale: Elements: Breach and Damages: General Demurrer. Allegations in the petition stating the following elements of a contract for the sale of coal sued on, to-wit: (a) the parties (plaintiffs and defendant); (b) the subject-matter (100 to 3.00 tons of coal per day); (c) the quantity (the entire output of defendant’s mines, not exceeding 300 tons per day); (d) the price ($1.80 per ton); (e) the place of delivery (the usual place); (f) the time of delivery (daily from May 1, 1916, to July 31, 1918); (g) a partial performance of the contract (that from May 1st until November 20, 1916, defendant kept and performed all the terms and conditions of the contract, by delivering to plaintiffs the entire output of its mines, and received from plaintiffs the price agreed to be paid therefor); (h) a breach of said contract (that after November 20, 1916, defendant wholly failed and refused to deliver to plaintiffs said coal or any part thereof); and (i) the resultant damages to plaintiffs in a named sum, are neither vague nor indeterminate, and in the face of a general demurrer to the petition must he taken as true, and embrace all the essential elements of a valid contract of sale.</p> <p>3. -: -: Consideration: Mutuality of Obligation: Part Performance. Allegations in the petition that plaintiffs agreed “to 'purchase of defendant a minimum of one hundred tons or a maximum of three hundred tons of bituminous coal per day, at and for the agreed price of $1.80 per ton;” that thereafter defendant executed and delivered to plaintiffs a written memorandum confirming the said agreement and that defendant “thereby bound itself to sell and did sell and deliver unto plaintiffs said coal according to the stipulations and to the effect as hereinbefore alleged;” that thereafter plaintiffs “with the consent of defendant elected to take under and by virtue of said contract the maximum quantity of coal mentioned therein,” and that from May until November, 1916, defendant delivered to the plaintiffs “the entire output of its said mines, and received therefor from plaintiffs the price agreed to be paid for said coal,” state mutual and reciprocal promises, and a contract that is not lacking in either consideration or mutuality. And even though the contract so pleaded may lack in mutuality, the part performance thereof, as alleged, made it binding on both parties.</p> <p>i. -:--: Defense of Statute of Frauds: How Raised. The defense that the contract pleaded does not comply with the Statute of Frauds cannot be raised by demurrer, but to be available must be specially pleaded in the answer, and if not so pleaded will be waived. So that where plaintiffs’ petition alleged that they orally agreed with defendant to purchase from it coal upon certain stated terms and that “thereafter, as evidence of and in confirmation and ratification of said contract and oral agreement, defendant, through the agent then in charge of and managing its business, made, executed and delivered unto plaintiffs its written memorandum of agreement whereby said oral contract and agreement was in all things confirmed and said defendant thereby bound itself to sell and did sell and deliver unto plaintiffs said coal according to the stipulations and to effect as hereinbefore alleged,” the defense that the contract alleged did not comply with the Statute of Frauds cannot be raised by demurrer.</p>

<p>1. JUROR: Prejudice. Where the juror stated that he did not think the “city got a square deal” in the transaction some years previously in which the defendant railway company had obtained a franchise from the city, but his whole examination shows that he was not satisfied with the franchise agreement, but shows no more, such examination does not show such prejudice as to disqualify him in a personal injury case.</p> <p>2. -: -: Presumption. The question of the juror’s qualification is to be tried by the court, and not by the juror; but after the court has tried the question, the ruling on appeal is entitled to a presumption of correctness, which is overthrown only when the ruling is clearly against the evidence.</p> <p>3. -: -: Injury to Juror’s Wife. The mere bald showing by affidavit that the wife of one of the jurors, during the progress of the trial and two. days before the unanimous verdict against defendant street railway company in a personal injury case, was injured while a passenger on one of defendant’s cars, is not enough to justify an inference of hostility towards defendant. In such a situation, it is significant that at no time before the motion for a new trial was overruled did defendant inform the trial court of the character of the wife’s injury, whether the injury was a serious one or a mere scratch, and whether defendant admitted responsibility.</p> <p>4. PLEADING AND PROOF: Necessary Result of Alleged Injury: No Exception. Where the petition alleged that the injury plaintiff received resulted in “the impairment of her mental faculties’’ her testimony that her injury caused her to he affected with loss of memory is within the allegation. But whether it was or not. if no exception was saved to the refusal of the court to strike out the testimony, it is not reversible error on appeal.</p> <p>5. PLEADING: Specific Allegation: Instruction. Instructions must be within the pleadings, and an allegation of general negligence is restricted by specifications of particular negligence, and instructions, in such a case, must submit nothing outside the specific charges; and in this case, where an allegation of general negligence was followed by specifications of negligent acts, the instruction was within the rule, and the proof tended to support the specific charges.</p> <p>6. INSTRUCTION: Contributory Negligence. An instruction requiring the jury to find that at the time of plaintiff’s injury she “was seated in the automobile in question and that said truck was standing still on the track ahead of the street car” negatived the defense that the truck backed into the car, and did not ignore said defense.</p> <p>7. -: More Than The Law Requires. An instruction is not erroneous because it requires a finding that the law does not require. Where the instruction submitted the case on common law negligence, it is not erroneous because it conjunctively requires a finding pertinent to the humanitarian doctrine.</p> <p>8. EXCESSIVE VERDICT: $12,000. Plaintiff at the time of her injury was twenty-five years old, strong, healthy and rosy, and had been steadily employed in stores and shops; the truck in which she was sitting was struck heavily by a street car, and she was rendered unconscious; her hack, hip and leg suffered severe and extensive bruises and abrasions; one kidney was displaced four or five inches, and the uterus was retroverted and results in painful irritation of the bladder; her mental powers were somewhat affected, she has greatly lost weight, and has become thin, haggard and sallow; an operation may correct the conditions of the displaced organs, but unless so corrected the displacements are permanent. The verdict was for $20,000, and the trial court reduced it to $12,000. Held, that it is still too large by $2,000, and is accordingly reduced to $10,000 as a condition of affirmance.</p>

<p>1. WILL: Construction: Equity Jurisdiction. Circuit courts, as courts of equity, upon application of devisees claiming merely legal estates, have jurisdiction to construe doubtful provisions of a will, whether they relate to real estate or personal property.</p> <p>2. -: -: Mistake of Draftsman: Reformation. A court of equity has jurisdiction to reform a will so as to correct mistakes of the draftsman which are apparent on the face of the instrument or arise out of a latent ambiguity. [Distinguishing Goode v. Goode, 22 Mo. 518.]</p> <p>3. -:-: Quieting Title: Cause of Action. A petition which, in its first count, pleads a will in full, alleges that it has been probated, sets out the land actually owned by testator, indicates specifically wherein its provisions disposing of the land owned and devised are uncertain and conflicting, and suggesting a construction which should prevail, and, in the second count, pleads the ownership of the land attempted to be devised to plaintiff, alleges the assertion of claims adverse thereto, asks the court to ascertain and determine the interests of the parties and prays a decree quieting title in plaintiff, states a cause of action in both counts.</p> <p>4. •- — •: Record: Recital in Bill of Exceptions. A recital in the bill of exceptions that indorsed on the will “offered and introduced in evidence” appears a certificate, under seal, signed by the judge and ex offleio clerk, certifying that “the foregoing and last will and testament of Henry Andre, deceased, together with the proof and certificate of probate thereof, were duly recorded in my office,” etc., imports absolute verity, and negatives any contention that no certificate showing that the will had been recorded in the office of the clerk of the probate court was offered in evidence, and also -negatives any contention that the. court erred in admitting said will in evidence.</p> <p>5. -: Probate: By Judge in Vacation: Confirmation. A will to which is attached a certificate by the “judge and ex officio clerk” of the probate court in which “I do declare and adjudge said instrument of writing to be the last will and testament of Henry Andre, deceased, late of Daviess County, and the same is therefore admitted to probate and ordered to be recorded,” being proved and admitted to probate by the judge himself, is, under the statute (Sec. 543, R. S. 1919), admissible in evidence, although the record does not disclose that the judgment of probate thus rendered in vacation was confirmed in term time.</p> <p>6. PROOF OF TITLE: Common Source: Prior Plats and Deeds. Where both sides claim title through the testator as the common source, and defendants merely deny plaintiff’s title and make no effort to show a better title or another source, it is not incumbent upon plaintiff to go back of the common source, but any irregularities in plats, documents or conveyances prior to such common source are immaterial.</p> <p>7. WILL; Testimony of Scrivener: Harmless Error. The testimony of the scrivener as to the understanding and intention of the testator is inadmissible; but where two other witnesses who were present when the will was drawn testified, even more explicitly than did the scrivener, as to the declarations made by the testator relative to the manner in which he desired his land to be divided, and their testimony is substantial to support the decree of the trial court correcting the descriptions to conform to the testator's intention, the admission of the scrivener’s testimony was harmless, and does not require a reversal.</p>

— Hon. Grant Emerson, Judge. (1) The court erred in finding the issues for the defendant, and that the contract sued upon, together with the performance .of same, was within the purview of Secs. 3027-3040, R. S. 1909, relating to the licensing of foreign corporations in this State, because the contract and the evidence adduced regarding the performance of same shows that the whole transaction was interstate- commerce and comprised within the meaning of the words “commerce…

- — Hon. Samuel Davis, Judge. (1) The Superintendent of the County Poor Farm had authority to sell the farm products and other articles of produce raised on said farm and also the livestock belonging thereto, and had authority also to purchase articles for the use of the poor, or for the use or improvement of the farm, or the building’s thereon, and to expend moneys for farm labor and other work for services dones by his order or contact. R. S. 1919, sec. 12212.

- — Eon. Allen C. Southern, Judge. (1) The petition sets forth facts sufficient to constitute in equity a cause of equitable relief in favor of both appellants, and against both respondents, (a) An injunction will lie at the suit of a resident of this State, who is entitled to exemptions under its laws, to restrain another resident of the State from prosecuting a suit by attachment, in a foreign jurisdiction, where the purpose and effect of such suit is to evade the…

— Hon. V. L. Drain, Judge. (1) Where a husband invests his wife’s personal property without her written consent in real estate and takes the deed in the name of both, an estate in trust is created to the extent of the wife’s money invested.

<p>1. INDICTMENT: Arson: Name of Owner of Building. An indictment charging that defendant had burned household goods for the purpose of defrauding the insurers need not name the owner of the building in which the goods were located, but if the charge is in the language of the statute it is sufficient.</p> <p>2. WITNESS: Expectation of Immunity: Cross-Examination. An inquiry on cross-examination of a co-conspirator to the crime as to whether, in making her statement to the prosecuting attorney, she entertained the hope and expectation that she would not be prosecuted, being confined to her hopes and expectations from having made the statement, and in no wise made dependent upon her testimony, is not a proper basis for an answer, and it is not reversible error to exclude a negative answer thereto.</p> <p>3. ADMISSION: Kindred Crimes: Incendiary Fires. Statements by defendant, charged with burning goods with intent to defraud the insurers, made to his co-conspirator, concerning his connection with other incendiary fires, in their nature voluntary admissions, whether the fires occurred before or after the one for which he is being tried, are admissible (1) as tending to show-intent and that the fire in question was of incendiary origin, and (2) to prove the corpus delicti, or to connect defendant therewith.</p> <p>4. HOSTILITY TO CO-INDICTEE. A witness’s hostility against a co-indictee w-ho has been granted a severance is immaterial.-</p> <p>5. REBUTTAL: Of Improper Cross-Examination. Where counsel for defendant, in the cross-examination of certain witnesses for the State, has attempted to show that the State’s main witness has kept a house of ill-repute, or one bearing that reputation in the neighborhood, testimony to rebut the attack upon her character is admissible, although it be conceded that it was error to permit the inquiry in the manner it was made.</p> <p>6. REPUTATION: Unassailed. Where the character of a co-indictee, who has been granted a severance and is a witness for defendant, has not been directly questioned, but upon cross-examination inquiries are made of him reflecting upon his standing, it is not error to refuse to permit defendant to show that said witness was a man of good reputation for truth and veracity. [Overruling Mo. App. Cases to the contrary.]</p>

— Hon: H. B. Shain, ■ Judge. (1) The judgment upon the counts complained of is for services and water which the city had contracted to receive from the plaintiff, hut the amount of recovery is based upon a rate fixed by the Public Service Commission in excess of the rate fixed by the contract.

— Hon. Daniel E. Bird, Judge. (1) Substituting tbe widow, wbo bad tbe legal right to sue for tbe claim for wbicb tbe action was brought, instead of a personal representative improperly named as plaintiff, was not a departure, or commencement of a new action. There is a vast difference between substituting a competent for an incompetent plaintiff, and bringing in a new defendant. Vaughan v. Ry. Co., 177 Mo. App. 155; Dugan v. Ry. Co., 178 Mo.

Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge. (1) Instruction number seven given for defendant was erroneous, because it ignored the issue of defendant’s negligence in failing to brace or secure the wall. Price v. Met. St. Ry. Co., 220 Mo. 463; Orr v. Bradley, 126 Mo. App. 148; Steffens v. Fisher, 161 Mo. App. 395. (a) The burden was upon defendant to show that the fall of the wall was not due to negligence on defendant’s part in any respect.

<p>1. APPELLATE PRACTICE: Sufficiency of Evidence. It is not the province of an appellate court to determine the weight of the testimony; in deciding whether a demurrer to the evidence in a criminal case was properly sustained, it searches the record only to the extent of determining whether there was substantial evidence to support the verdict. And judged by this rule, the evidence in this case was amply sufficient to sustain the verdict that defendant was the person who, with gun in hand, robbed the prosecuting witness of thirty dollars or more.</p> <p>2. EVIDENCE: Refreshing Witness’s Memory: Grand Jury Notes. The testimony given before the grand jury by a witness for the State may be handed to him for the purpose of refreshing his memory.</p> <p>3. ARGUMENT TO JURY: Defendant’s Failure to Testify: Comment. It is not permitted to the prosecuting attorney to refer to and criticise defendant’s failure to testify; but to say that “there has not been a witness here who says defendant was not” at the place where the robbery was committed, is not to comment on defendant’s failure to testify.</p> <p>4. -: Defendant’s Reputation: Injected by His Counsel. Where defendant’s counsel has in his argument to the jury stated that defendant “comes here with the best of reputation” it is not error for the prosecuting attorney to refute it by replying that no witness “said anything about his reputation,” and that, if any witness had said anything about defendant’s reputation he too “would have had something to say about his reputation.” Such remarks were not comment on defendant’s failure to testify, and defendant’s reputation being injected into the case by himself, the prosecuting attorney had a right to refute the statement of his counsel that it was “the best,” and the court did not err in refusing to discharge the jury because of the refutation made.</p>

Louis City Circuit Court. — Eon. Karl Kimmel, Judge. (1) The sale of the property of the insolvent Missouri Pacific Railway Company under a consent decree, in pursuance of a plan and agreement of reorganization of said company, in which there was reserved for the stockholders of the old company a stock interest in the new company, was and is in law a fraud upon the rights of the appellants, and as to them is void. ' Mumma v. Potomac Co., 8 Pet. 281; Railroad Co. v. Howard, 7…

<p>1. JUDGMENT: Conolusiveness: Attack by Mandamus: Will and Codicil. Where the probate court admitted a will to probate, but rejected a codicil attached thereto on the ground that it had not been legally attested, and in a suit to contest the will in the circuit court the codicil was not copied into the petition, offered in evidence or referred to in the judgment sustaining the will, a subsequent suit by mandamus cannot be maintained in the circuit court by a devisee named in the codicil to compel the probate court to probate or reject the codicil, since the recitals of the judgment sustaining the will are conclusive.</p> <p>2. -: -: -: Jurisdiction: Collateral Attack. If the right of a devisee named in the codicil to have the codicil probated by the probate court which had rejected it was not an issue in the suit brought in the circuit court by a contestant of the will, wherein the will was sustained and the decree made no mention of the codicil, that question was not removed from the jurisdiction of the probate court, and its judgment rejecting it cannot be assailed by mandamus brought by the said devisee to compel the probate court to probate or reject it. If jurisdiction of the probate court over the rejected codicil was removed by the suit to contest the will, that court has no more jurisdiction now than it had after the suit to contest the will had been begun in the circuit court. But whether or not the jurisdiction over the codicil was removed by the contest suit, the judgment of the probate court rejecting the codicil from probate, being regular on its face, imports verity until set aside by contest or a direct proceeding, but cannot be set aside by a mandamus suit to compel the probate court to probate or reject the codicil.</p>

Louis City Circuit Court.— Eon. Frank Landwehr, Judge. (1) The building was not a hotel or a dormitory, but was a “club house,” for which the number of fire escapes should be determined by the Building Commissioner of the City of St. Louis. Hence the plaintiff in resting her action upon the theory that the building was a hotel or dormitory, proceeded upon the wrong theory and was not entitled to go to the jury.

<p>1. PARTITION SALE: Motion to Set Aside: Time of Filing. A motion to set aside an order approving a sale by the commissioner in partition serves the office of a motion for a new trial, and must be filed within four days after the order approving the sale is entered, and if not filed within such time the trial court loses jurisdiction to consider it.</p> <p>2. -: -: After Final Adjournment. The trial court has no inherent power to set aside a judgment after the final adjournment of the term at which the judgment is entered.</p> <p>3. -: —-■: -: General Order of Continuance. A general ' order that “all causes, motions and demurrers now pending and undisposed of be and they are hereby continued to the* next term of this court” does not have the effect of continuing the jurisdiction of the court to set aside a judgment on its own motion, where the motion to set aside was filed out of time at the term at which the continuance order was made. The court can set aside a judgment upon its own motion only at the term at which the judgment was rendered.</p>

— Hon. W. S. C. Walker, Judge. (1) If Going gave bis note directly totlie bank for the purpose of procuring funds with, which to buy for the lumber company the north half of Section 8, did the bank have the right to take the proceeds of this note and credit same to the account of the Pemiscot Lumber Company Avithout the consent of Going? This question must be answered in the negative.

C ertiorari. (1) .The opinion of the learned Court of Appeals in holding: 1st, that the first two items of the lien claim or account filed by plaintiff, was sufficient without specifying any of the material or labor; 2nd, that an original contractor with the owner was not required to make his lien claim as specific and definite as sub-contractors; 3rd, that if the lien claim was as definite as the contract under which it is furnished, it is sufficient; and, 4th, that these…

<p>1. JUDGMENT: Correction. The power of a court, at a subsequent term to correct or amend its judgment is limited to cases in which there has been an omission to enter such a judgment as the court actually rendered.</p> <p>2. -: -: Nunc Pro Tunc Entry. Where the court has omitted to make an order or'judgment which it might or ought.to have made, a correction at a subsequent term, by nune pro tune entry, must be based on the judge’s minutes, the clerk’s entries or some papers on file in the case, afid not upon the judge’s recollecl^on of what took place at the trial or upon outside evidence. , ,. „</p> <p>3. -:-: • — ■——: Will and. Codicil. Where the probate court had admitted a will to probate but rejected a codicil, and upon a contest in the circuit court a decree was rendered sustaining the will, but making no reference to the codicil, a judgment nunc pro tuno amending the decree to embrace the codicil cannot be rendered at a subsequent term, the attestation of the codicil not being tried in the will contest, and there being nothing in the judge’s minutes, the clerk’s entries or the flies in the case to indicate any other decree was rendered or that the clerk failed to enter up the right judgment.</p>

— Now. Williard P. Hall, Judge. (1) The trial court erred in ruling that the Federal Compensation Act of September 7, 1916, did not apply and fix and govern the compensation payable by the Government to the widow and minor children of deceased. The Director General in operating the. Missouri Pacific Railroad was not personally liable for damages for Appleby’s death.

Louis City Circuit Court. — Ron. Vital W. Garesche, Judge. The trial court erred in holding that the separation agreement herein was not valid. (1) Separation agreements between husband and wife are enforceable under the laws of Missouri, both at law and in equity, and may include a settlement of property rights. Husband and Wife, 21 Cyc. 1592-96; Contracts, 9 Cyc. 519-520; Perry v. Perryman, 19 Mo. 469; Garbut v. Bowling, 81 Mo. 214; Specht v. Dausman, 7 Mo.

Mandamus. (1) Section 7558, R. S. 1919 is violative of Sec. 3, Art. X, of the Constitution in that the tax levied under the provisions of said section is not uniform upon the same class of subjects within the territorial limits of the State; (b) said section is violative of Sec. 4 of Art. X of the Constitution, in that all property of the State subject to tbe tax imposed by said section is not taxed in proportion to the value of said property; and (c) because it places a…

<p>1. EASEMENT: Restrictions in Deed: Appropriation to Public Use. Restrictions in deeds of conveyance by which the grantees covenant that the lands are to be used only for residential purposes give to them easements in all lots sold under similar conditions, and such easement is property, is valuable, and cannot be taken for a public use without the payment of a just compensation.</p> <p>2. -: -: Appropriation to School Uses. Where an addition a half mile long and a quarter of a mile wide was platted by the owner and lots therein were conveyed to purchasers by deeds in which each grantee agreed for himself and all persons claiming under him that no building should be erected on said lot other than a residence and that said lot should be used‘only for residence purposes, such restriction gave to each grantee an easement in all the other lots of the addition conveyed by deeds containing a similar covenant, and the public school board, which seeks to condemn for school purposes two blocks in the midst of the addition, must pay to the owner of a lot adjoining the blocks so appropriated a just compensation for the value of such easement to such lot, before it can take possession of the blocks to be used for a school house site.</p> <p>3. --:-: -: Prohibition: Remedy Against Instruction to Assess No Damage. Where the trial court has instructed the commissioners appointed in a condemnation proceeding, 'to allow no damage to the owner of an easement in a lot which has been injured and damaged by the appropriation of other lots to a public use, such instruction is in excess of the court’s jurisdiction, and not mere error, and such owner is entitled to a writ of prohibition to prevent such trial judge from enforcing such instruction. Such easement is property, and the Constitution says that no property can be taken or damaged for a public use without the payment, in advance, of its value if appropriated, or the damage thereto if injured, and the trial court in instructing the commissioners (who are the arms of the court) that they are to allow no damage for such injury violates this constitutional right, and therefor® exceeds its jurisdiction. [Per GRAVES, J., concurring.]</p>

— IIon. Arch B. Davis, Judge. . (1) The court erred in forcing defendant to trial before his sentence in Iowa had expired. There is no law in any civilized county allowing the Governor to lend a person to another government to be tried for a crime and yet retaining custody of the person and requiring the other government to return the prisoner if it fails to convict him. The court should have postponed the' trail until the termination of his sentence in the State of Iowa.

— Hon. J. G. Slate, Judge. (1) The judgment in this case is insufficient and cannot stand, because the same does not meet the requirements of Sec. 8317, R. S. 1909, now Sec. 7336, R. S. 1919.

— Hon. N. M. Pettingill, Judge. (1) The court erred in rendering judgment of ouster. On the agreed statement of facts, the-evidence and the pleadings, appellant was eligible and possessed the qualifications for the office of county superintendent.

Mandamus. (1) The business of relator does not conflict with the laws and Constitution of this State, but, on the other hand is, in each and every particular, in full accord therewith. (a) The agreement and declaration of trust for the formation of the Great American Home Savings Institution is a lawful contract, providing for the formation of a “voluntary association of unincorporated individuals” to do business in Missouri, under Section 10263, R. S. 1919.