Volume 291 — Missouri Reports

Hon. L. B. Woods, Judge. (1) The trial court erred in rendering judgment in favor of respondent against appellant for purchase money in the sum of $2600 and interest thereon, because respondent is only a grantee of a grantee of the pretended guardian of appellant and has no legal or equitable claim against appellant for his purchase money, which respondent paid to Berry, his grantor, solely, under the terms of a warranty deed.

Louis City Circuit Court. Hon. Gran-ville Hogan, Judge. (1) The deceased was engaged in interstate commerce at the time he sustained the injliries. (a) In doing repair work on tracks of an interstate railroad the employees engaged in tins work are employed in interstate commerce. Pederson y. Railroad, 229 U. S. 146; Southern R. R. v. Accident Comm., 251 TJ.

Louis Circuit Court. Hon. G. A. Wurdeman, Judge. (1) The decree of this court provides that the trustee’s sale and his deed thereunder, conveying- plaintiff’s property to defendant Walton, and said Walton’s deed are null and void, and the mandate directs that plaintiffs be restored to all things lost by the judgment of the trial court.

Hon. L. B. Woods, Judge. (1) A trust relation existed between Joseph F. Bryant, Sr., the common source of title, and Cora B. Neal. E. S. 1909, sec. 2268. It is manifested and proven by a writing signed by the party enabled to declare the trust. (2) A trust is a relation between two persons by virtue of which one of them holds property for the benefit of the other. Corby v. Corby, 85 Mo. 388; Shelton v. Harrison, 182 Mo. App. 414; Perry on Trusts (4 Ed.) sec. 13.

Louis City Circuit Court. Hon. J. Hugo Grimm, Judg’e. (1) Plaintiff amended petition, on which the case was tried, failed to state facts sufficient to constitute a cause of action against defendant; and the trial court therefore erred in overruling defendant’s demurrer to the petition, and in refusing to give defendant’s instructions at the close of plaintiff’s evidence to the effect that under the pleadings and evidence plaintiff was not entitled to recover.

Hon. Guy D. Kirby, Judge. (1) The common law obtains in Missouri, Sec. 8047, R. S. 1909. (2) The statute does not change the common-law rule relative to the presumption of death after absence for a period of seven years. Chapman v. Kullman, 191 Mo. 245; Flood v. Grover, 126 Mo. 262. (3) There is no presumption that plaintiff’s husband died at any particular time within the seven years, but the presumption is that on the 7th day of June, 1917, he was dead.

Hon. Thomas J. Seehorn, Judge., (1) This suit being one for money had and receded cannot be maintained by the plaintiff, and the court erred in not sustaining defendant’s demurrer. Dennin v. Woodbury, 160 M T. Supp. 650; Schhiffer v. Seitz, 83 N. Y. 300; Pryor y. Poster, 130 N. Y. 171; Love v. Yan Every, 18 Mo. App. 203; Steele v. Frazier, 139 Mo. App. 338; Mullinax v. Lowry, 140 Mo. App. 45; Engine Co. v. Gras Engine Co., 49 Fed. 68; Bernays v. Wurmb, 4 Mo. App. 231.

<p>1. MOTION FOE JUDGMENT ON PLEADINGS: Admission. In •prohibition, a motion filed by relator for judgment on the plead.ings admits such facts in the return as are well pleaded.</p> <p>2. INJUNCTION: Granted Without Bond. On petition for writ of prohibition against a circuit judge who has granted a temporary injunction in the name of the State 'on the application of the prosecuting attorney, no bond being or could be required, the Supreme Court will closely scrutinize the proceedings and prohibit them if a legal wrong is about to be committed for which there is no adequate remedy by appeal or otherwise.</p> <p>3. --—: -: Notice: Arbitrary Act. There is no statutory requirement of notice to the adverse party as a prerequisite to the granting of temporary restraining orders and¡ injunctions, except in proceedings to stay suits and judgments; but notice is necessary to thei granting of a temporary injunction, except in extreme cases; and, although the injunction is brought by the prosecuting attorney, in the, name of the State, to suppress a public nuisance, if no notice or bond is given., and the 'other facts show an arbitrary and excessive use of the court’s jurisdiction, further proceedings therein will be prohibited.</p> <p>4. -: Excessive Jurisdiction: Prohibition. To grant a temporary injunction, on the petition 'of the prosecuting attorney to suppress a public nuisance, without bond and without notice to defendant, when the record facts show there is no such' emergency as requires a summary determination of defendant’s rights without a hearing or an opportunity for a hearing, and under such circumstances as indicate it is arbitrarily granted without notice for the purpose of preventing a change of venue if notice were given, is in excess of the court’s jurisdiction, and §,n abuse of its discretion, such as will be prohibited by writ of prohibition.</p> <p>5. —-: Granted Without Bond or Notice: Public Nuisance: Arbitrary Act to Prevent Change of Venue: Excess of Court’s Jurisdiction. Defendants were engaged in feeding a large number of hogs with garbage shipped, over a railroad, under contract with the city of St. Louis', to a point in an adjoining county in) respondent’s judicial circuit. Garbage consists of bread, peelings, dead animals and other soured and decayed vegetable matter, and in hot months decays and becomes putrid and will spread disease, and it had caused offensive and injurious odors at the hog ranch and in the neighborhood thereof, tending to cause disease and pestilence, and otherwise injuriously affected the general welfare of the people, especially of those living in the neighborhood, many of whom own their homes. On August 30th the prosecuting attorney filed a petition for injunction to prevent the railroad company from shipping garbage to said point and the 'other defendants from unloading and feeding same to their hogs, alleging that said acts constituted a public nuisance, affecting the comfort, health and well-being of the public residing in and passing through said neighborhood. Notice was given defendants that said petition would be presented to the respondent circuit judge on September 1st, and a temporary injunction asked at that time. The défendants appeared on said date, and presented an application in proper form for a change of venue, based on the alleged bias and prejudice of respondent against them. Thereupon respondent permitted the prosecuting attorney to dismiss the case; he had previously charged the grand jury in respect to the hog feeding operations, with instructions to return an indictment if they found' the law had been violated; the grand jury found no indictment. On September 6th, on the last day of the August term, the prosecuting attorney filed a new suit similar in all respects to the one previously filed and dismissed; said second suit was filed without previous notice to the defendants; respondent granted a temporary injunction, effective immediately, restraining the railroad company from -receiving garbage for shipment to such point, and thei other defendants (the relators) from unloading and feeding same to their hogs, then several thousand in number; and thereupon respondent adjourned thei court in course, or until October 1st, without giving relators notice that such temporary injunction had issued, or an opportunity for immediate hearing on any motion to dissolve said injunction. Held, first, that it is not necessary to consider respondent’s bias or prejudice against relators, but it is enough that he knew they had filed an application for a change of venue making such charge, before the'first suit was dismissed, and if given an opportunity they would likely do so in the second, and his unexpected action in the second without notice doubtless prevented such application; second, since relators had been conducting their business for eight months and the full height of the heated season had been reached before any injunction was filed, and when filed respondent exercised his discretion in favor of giving a notice, a justified conclusion is that sufficient notice of the application in the second case would not have unduly jeopardised the interests of the public; third, the conclusion is irresistible that the proceedings on the second application, without notice, amounted to snap judgment against defendants, were arbitrary and wrongful, were not had ir. the exercise of respondent’s sound discretion, and were an excessive exercise of his usual and rightful jurisdiction; and, fourth, as relators have no adequate remedy by appeal or otherwise!, except by writ of prohibition, the temporary rule is made absolute, and the respondent is required to set aside the order granting a temporary injunction and not to proceed further in said case until defendants are duly served with notice or enter their appearance therein.</p>

Certiorari. (1) The Court of Appeals, in holding that the case was one for a jury, as to whether or not the hand cars were being negligently operated by the section men too close together, in reasonable anticipation that, a section man in the ordinary and nsnal experience might suddenly slip and fall from the front car, contravened the general principle of law announced by. this court in American Brewing Assn. v. Talbot, 141 Mo. 674, 683; Fuchs v. St. Louis, 167 Mo. 620,…

Louis City Circuit Court. Hon. Franklin Ferriss, Judge. (1) It was the duty of the defendants to keep the premises in question in safe condition so as to prevent injury to children, in view of the fact that the premises were dangerous to children and likely to attract them. Schmidt v. Distilling Co., 90 Mo. 284.

Certiorari. The opinion of the Court of Appeals holding that the error in plaintiff’s instruction “A” was cured by the giving of defendant’s instructions 1, 3, and 5, and holding that said instruction “A” was not in conflict with defendant’s instructions 1, 3 and 5, is in conflict with the last controlling decisions of this court and in conflict with the general trend of the decisions of this court. Wingfield v. Wabash Ry.

Hon. Peter H. Huch, Judge. (1) The defendant drainage district is a public corporation of the State of Missouri. Laws 1905, p. 192, sec. 8253; Secs. 5498, 5499, R. S. 1909.

Hon. Alonso D. Burns, Judge. (1) Tile court erred in admitting the testimony of John W. Link as to the ownership ,of the purchase money, and in permitting him to testify that he borrowed it from James Madison Payton, deceased.

—Hon. Fred Lamb, Judge. (1) The action right of a widow to dower before an assignment of it to her is not such an estate or interest in land as can be levied on and sold under an execution against her; the dower must be assigned to her. Waller v. Mardus, 29 Mo. 25.

Louis City Circuit Court.—Son. Vital W. Garescho, Judge. (1)The court should have sustained the demurrer offered by the defendant at the close of the State’s case. (2) The court'committed error in giving the instruction which assumed that the first marriage was performed by a minister of the gospel who was authorized to perform marriages, and that said marriag'e was to Mary Pinson.

—Ron. J. G. Slate, Judge. (1) The amendment submitted and voted on at the general election in November, 1920, was constitutionally submitted and ratified. The initiative petitions were sufficient in form and number of qualified signers in eleven congressional districts, and a copy of the proposed amendment was published as required bv Article XV of the Constitution. State ex rel. v. Winnett, 10 L. R. A. fNT.

Louis City Circuit Court.—Hon Benjamin J. Klene, Judge. (1) The evidence conclusively shows an agreement created between the husband and wife, expressing the particular trust intended, viz., to care for, invest and 'protect her inherited estate for her own use and benefit; hence, a valid express trust is shown. Stevens v. Fitz-tpatrick, 218 Mo. 723; .Godard v. Conrad, 125 Mo. App. 174; Murry v. King, 153 Mo. App. 716; Mize v. Bates County Bank, 60 Mo.

<p>Mandamus.</p> <p>(1) The relator contends that inasmuch as the Con-, stitutional Amendment provides that-the manner of nominating party candidates for delegates to the Constitutional Convention shall be prescribed by the senatorial committee of the respective parties, that provision overrides all statutory provisions touching the particular -matter of nominating candidates for delegates. In other words, the manner of selecting party candidates for delegates is specifically provided for in this amendment and all statutory provisions give way to it. Laws 1921, 712. The particular clause upon which we base our contention is the one providing that the candidates of each political party for delegates from a senatorial district shall be nominated in such manner as may he prescribed by the senatorial committee of the respective parties. (2) The •senatorial committee in Jackson County is the chairman of the county committee. There are no other provisions except those found in said Section 4848 specifying who shall constitute the senatorial committee, and there are no provisions imposing any specific duties upon such •senatorial committee. Section 4848 specifically provides that the chairman of the county committee shall become a member of the party .... senatorial .... committee of the district of which his county is a part. No other member or members of the county committee is clothed with authority to act as a senatorial committee. We are unable to find in the statutes any duty imposed upon the senatorial committee specifically. The first duty that it has ever been given by legislative or constitutional enactment is the provision contained in the constitutional amendment involved here. The question reverts, therefore, to the issues as to whether or not under the provisions of this section of the statute Mr. Beardsley was in fact the senatorial committee, and whether he was authorized to act in accordance with the mandate of the constitutional provision. (3) In law, in legislative bodies, in societies and in corporations, a committee consists of one or more persons, it follows, therefore, that there can be no objection urged on the score that a committee cannot be one individual. 12 C. J. 150'. (4) It is also true, as a matter of law, that where no specific number of persons are referred to as constituting a committee, .and in a situation such as we have here, if one member of the Committee is duly appointed, acting and functioning as contemplated by the legislative act or constitutional mandate, then, and in that event, such single individual should be permitted to act and discharge the duties imposed. (5) The court will observe that the provisions of Section 4848 are general and apply to the entire State. It is perfectly apparent that the Legislature had in mind specifically Jackson County. The very next clause of the section provides that if any congressional district shall consist wholly of one county, in such district the county committee shall constitute the congressional committee of such district. Jackson County is the only county in the State that meets that situation; therefore, the Legislature had Jackson County in contemplation. The Legislature must also, of necessity, have known that Jackson County has and has had for many years two senatorial districts. It cannot he said, therefore, that the language of the statute, awkward as it may he was not deliberately used. In view of this situation, the Legislature was satisfied to entrust the work of the senatorial committee, whatever it might he, with the chairman of the county .committee. (6) It is also perfectly clear that inasmuch as the constitutional amendment specifically provides that the manner of nominating candidates for delegates to the Constitutional Convention shall be prescribed by the senatorial committee, no other method of determining the'manner of nominating candidates can be substituted. (7) The eountv committee is not authorized to act as a senatorial committee. There is no provision any where in the statute directly or indirectly authorizing the county committee to act as a senatorial committee.</p> <p>(1) Before relators are entitled to the issuance of a writ of mandamus it is necessary for them to show that they have a direct and personal interest in the matter involved. State ex rel. v. Smith, 104 Mo. 661. Relators must have a clear legal right to the thing demanded, and the burden is on relators to maintain the mandamus proceedings. State ex rel. v. Stone, 269 Mo. 334; State ex rel. v. Hudson, 226 Mo. 239. (2) The certificates presented for filing by relators were not ‘ executed with the formalities prescribed for the execution of an instrument affecting real estate,” as is prescribed by Sec. 4802, R. S. 1919. (a) They are in no way acknowledged, attested or authenticated. This alone, it would appear, justified the refusal on the part of respondent. State ex rel. v. Le-sueur, 103 Mo. 253, and State ex rel. v. Lesueur, 136 Mo. 452, cited in Atkinson v. Lay, 115 Mo. 538, and Rollins v. McKinney, 157 Mo. 656; Secs. 4802, 4823, R. S. 1919; State ex rel. Punch v. Kortjohn, 246 Mo. 34. (b) The certificates presented by relators for filing do not comply with Sec. 4803, R. S. 1919, by setting forth the residence and the occupation of the relators and the office for which the re-lators were nominated, nor do the certificates give the residence of the signers thereof., (c) The certificate rejected was not signed by any member or officer of the senatorial committee or any other committee. A reading of the amendment authorizing the holding of the convention would make it appear that the senatorial committee should make the certificate. Sec. 4803, R. S. 1919. (3) Relator should have filed objections to the certificates of nomination of Paul S. Conwell and Halbert H. McCluer, and failing to do that within three days after the filing of samé, they are now precluded from doing so. Sec. 4817, R. S. 1919; State ex rel. Farris v. Roach, 246 Mo. 56. The method pointed out by Section 4817 is exclusive. State ex rel. v. O’Donnell, 62 N. J. L. 35; State ex rel. v. Piper, 50 Neb. 40; In re Oowie, 11 N. Y. Supp. 838; In re Nash, 72 N. Y. Supp. 1057. (4) Jackson County is not “a part” of any senatorial district. It forms the whole of two senatorial districts and therefore the provision of Section 4848, R. S. 1919, providing a chairman of the county committee shall become ‘ ‘ a member of the. party senatorial committee of the district of which his county is a part” has no application. Conceding the utmost, Mr. Beardsley as county chairman became ‘ ‘ a member of the senatorial committee of the district of which his county is a part,” which means that he and others were members of a senatorial eompiittee, but this construction is so strained that it must be discarded because Jackson County is not a part of any senatorial district. (4) Where a senatorial district is situated entirely within a county or constitutes only a part of a county, its affairs, have by a custom which has been followed ever since the passage of the primary law been administered by the members of the county central committee from the wards and townships or parts of wards and townships constituting’ the senatorial districts as the senatorial committee. This custom is not in violation of any provision of the statute, but is in perfect harmony therewith, and is evidently exactly what it was contemplated would and should be done. (5) The proceedings instituted by re-lators herein are, -in effect, an attempt to settle a factional difference between factions in the Republican party in Kansas City, and existing in said Republican County Committee, and an effort, to litigate an election contest by mandamus in this court, which does not have original jurisdiction to hear and determine by mandamus or any other manner except by an appeal in the proper case from the circuit court, or from the decision of the Secretary of State after he has acted upon objections timely filed to a certificate of nomination as provided' for in Section 4817, R. S. 1919, where the parties whose interests are to be affected may be made parties to the action. State ex rel. v. Miles, 210 Mo. 127, 184. (6) The two alleged certificates deposited with the respondent by the relators herein, do not show that the Republican party took any legal steps or acted in a legal manner to make nominations to the office of - delegate to the Constitutional Convention. Both fail to show that the Constitution and laws of the State have been complied with in any manner. It appears from the face of said certificates that they are void and of no legal effect. The so-called primary election to; which the relators refer, and upon which they base their' claims to the right of being classed as nominees to the office of delegate to the convention to revise and amend', the Constitution, was held without any official notice having been given: It is admitted that the only notice that: was ever given consisted of news items printed in newspapers as the result of diligent work of newspaper reporters. It is elemental that some kind of an official action and notice should have been had and gjiven bef ore an election or primary can be considered valid. All action taken was solely by Mr. Beardsley; no committee acted npon or approved Mr. Beardsley’s primary plan.</p>

—Hon. G. A. Gal-vird, Judge. (1) The Green Light & Power Company was, and is, an “electrical corporation” (Sub. div. 13, Sec. 10411, R. S. 1919), and subject to the jurisdiction of the Public Service Commission (Sub. div. 5, Sec. 10425, R. S. 1919), being engaged in the manufacture, sale and distribution of “electricity for light, heat and power,” and'as “owning, leasing, operating or controlling” an electric plant, for the manufacture, sale and distribution of electricity,…

Mandamus. (1) Where the statute provides that bonds issued shall be exchanged for an outstanding indebtedness, an issue of bonds under the provisions- of such statute does not create a hew indebtedness, nor increase the old, but merely changes the form of an existing indebtedness.

—Hon. Ralph Hughes, Judge. (1) The trial court erred in ignoring- and failing to find that the probated and recorded will of Minitree Catron, in Lafayette County was a link in the chain of title to the lands in controversy, and was notice thereof to the whole world.

Mandamus. (1) The opinion of the Court of Appeals is erroneous in that the provisions of Sec. 1462, R. S. 1919, were complied with. The hill' of exceptions does purport to have been signed by the judge of the Circuit Court of Jackson County. Section 1459, Revised Statutes 1919, provides: '‘The persons composing the court shall, if such bill he true, sign the same.” Sections 1461 and 1462, cited in the opinion, have no relation to the instant matter whatever.

Habeas Corpus. (1) The Constitution provides that “All persons shall be bailable by sufficient sureties, except for capital cases when the proof is evident or the presumption great.” Mo. Constitution, art. 11, sec. 24; Kelley’s Crim. Law & Proc. (3 Ed.) p. 60, sec. 78; State v. Allen, 275 Mo. 394. (2) The offense with which the prisoner is charged in the indictment is a capital one within the meaning of the Constitution.

Circuit Court.—Hon. A. W. Walker, Judge. •(1) The motion in the nature of a writ of error coram nobis is the proper remedy to set aside a conviction obtained by duress or fraud, or to obtain relief from an improvident plea of guilty, unjustly procured from the accused, or to set aside a conviction on such plea, forced by fear of mob violence, and such a motion lies in Missouri. 16 C. J. 1326, 1327; State v. Calhoun, 50 Kan. 523, 18 L. R. A. 838; Sanders v. State, 85 Ind.…

<p>1. NEGLIGENCE: Extent of Injuries: Exclusion of Cumulative Testimony for Plaintiff: New Trial. Where the real contest at the trial was upon the question whether plaintiff, a passenger on a street car, was injured at all in its collision with another and the verdict for defendant really.means that she was not, it is error to grant a new trial on the ground of the exclusion of testimony for her which was merely cumulative evidence on the amount of damage she suffered. So that where the petition alleged the injuries suffered by plaintiff were bruises and contusions upon the hip, side and back, a straining of the muscles of the back, bruises and straining of the spinal column, and a miscarriage, which induced nervous shock, headaches and . insomnia, the exclusion of testimony by her physician that two days after the collision she complained of a “bearing down sensation” was not such error as authorized the granting of a new trial, in view of the fact that the physician further testified that she complained of pain in the side, head and back, and followed with a detailed statement of what he determined to be her condition as disclosed by his examination, and found therefrom considerable tenderness over the back, that she was very nervous and suffering very much; that he discovered this from manipulation, from which she shrank and gave indications of pain; that she told him of suffering bearing down pains, and fully testified concerning the evidence of a miscarriage and its effects, and in view of the further fact that the jury by its verdict in effect found that she had suffered no injury at all through any fault of defendant, since the testimony excluded was merely cumulative evidence upon the amount of damage suffered, and the nature of the injury did not tend to prove the cause of action.</p> <p>2. -: -: Evidence; Generalization. It is not error to exclude 'the testimony of a physician that he found the plaintiff “in a very bad shape,” it being a generalization, and the witness being later permitted to give all the details of her condition as he found it and upon which he based the statement.</p> <p>3. -: -: -: Conclusion. It is not error to exclude the statement of a witness that the plaintiff, claiming to have been injured in the collision of street cars, “couldn’t get up,” and that she asked plaintiff “to stand up and she couldn’t,” the testimony being a conclusion, and the witness subsequently testifying to all the relevant facts relating to the • question whether plaintiff could get up.</p> <p>4. -:-:-: -: No Offer to Prove. It is not error to exclude the answer of a witness to a question whether plaintiff “needed assistance in getting up the steps” at her home when she arrived there after the collision of the street cars, in which she, a passenger on one of them, claimed to have been injured, the answer calling for a conclusion and the fact that assistance was actually given being subsequently let in, and no offer to show what answer would have been given having been made.</p> <p>5. --—: -: -: -: Harmless Exclusion: Condition of Health. It is not prejudicial error to exclude the testimony of a witness that prior to the date of the alleged injury plaintiff “was always well,” the witness subsequently being permitted to testify that she had seen plaintiff “most every day” and never knew her to be sick.</p> <p>6. -: -: -: -: Exclusion and Subsequent Admission.” The exclusion of the statement of a witness that the impact of the collision of the street cars was sufficient to throw her against plaintiff, where the question did not call for the answer, and where, in answer to a proper question, she was allowed to testify to the same thing, was not errbr.</p> <p>7. -: -: -: -: -: Appearance. The answer “very poor” to a question, “What do you say as to plaintiff’s condition of apparent health and strength now?” was a conclusion, and its exclusion did not injure plaintiff where the'witness was subsequently permitted to testify that plaintiff “appeared to be suffering and in a very weak condition.”</p> <p>8. -: -: Cumulative Evidence: Miscarriage: Proximate Cause. Where there was no real contest on the question whether plaintiff suffered a miscarriage, but the contest was upon the issue whether the miscarriage was the result of injuries received.» in the collision of street cars and whether her subsequent bad condition was a result of defendant’s fault, and the jury found against her on that issue, the exclusion of testimony tending to show some of the particulars of a chronic condition was not error justifying a new trial, since the testimony tended to add to fhe evidence of damage already in, and the jury did not reach the question of damage at all.</p> <p>9. -: -: Irrelevant Evidence: Psychic Shock. Where the petition specifically alleged certain physical injuries and that they produced a miscarriage, an inquiry by plaintiff’s counsel, in the cross-examination of a physician who had examined plaintiff, whether shock alone, without an injury, would produce a miscarriage, meaning psychic shock, which the physician had testified was a mental state produced by certain conditions, the exclusion of his answer was not erroneous, no effort being made to show the existence of the conditions that would produce a psychic shock, and no offer being made to show what the witness would say in answer to the question or what the true answer would be.</p> <p>i0. -: -: Instruction: No Evidence. The giving of an instruction for defendant telling the jury not to assess any damages for “any bruised back or any bruises of the spinal column,” was not error, where, although the petition alleged that plaintiff had received such injuries, there was no evidence tending to prove the allegations, and plaintiff’s own physician showed no such bruises.</p>

Prohibition. (1) When a court undertakes to act in excess of its jurisdiction, prohibition is the proper remedy. .State ex rel. v. Gates, 190 Mo. 553; State ex rel. v. Ross, 122 Mo. 464; State ex rel. v. Weithaupt, 238 Mo. 155; State ex rel. v. Seehorn, 246 Mo. 585; State ex rel. y. Board of Trustees,- 268 Mo. 168. (2) The information in the case of State v. Hammer was in proper form and charged a crime in the language of the statute.

Quo Warrant,o. (1) The order of the county- court is wholly insufficient and does not find that the petition referred to therein was signed by any person, but simply states that it was found “to contain over one hundred names of voters of Wright County.” Nor does it find that they were legal voters.

— Son. L. B. Woods, Judge. (1) Henry Willis and William T. Willis were each entitled to one-half of the life estate, and each of their children surviving them is entitled to an equal part of the share of their ancestor per stirpes. 18 C. J. 329; Tread-well v. Bulldey, 4 Am. Dec. 227; Charles v. White, 214 Mo. 196; Long v. McDongald’s Admr., 23 Ala. 413; Smith v. Alderson, 116 Ya. 986.

<p>1. STREET IMPROVEMENT: Excessive Assessment. The Charter of Kansas City fixes the district to he charged with the cost of street grading, and requires the apportionment of the cost according to the value of the respective tracts embraced within the district; and where proceedings were not unreasonable or arbitrary as a whole, and no claim is made that the lots abutting on the street improved was valued inequitably in comparison with other lands in the assessment district, the amount of benefit assessed against each particular lot is not a judicial question, but a legislative act, which the courts have no authority to review; and though the evidence shows that the value of the lots prior to the assessment was only slightly in excess of the assessment, and their value after the improvement was only slightly more than their value prior to the assessment, a court of equity cannot cancel the tax bills.</p> <p>2. -: —-: Due Process of Law: No Hearing. The apportionment of the cost of a street improvement against the various tracts of land in the benefit district being a legislative act, the owner of lots abutting on the street improved, which seem to be excessively assessed, is not, because the city charter makes no provision for a hearing before the officer making the assessment, denied due process of law by the refusal of a court of equity to cancel the tax bills, since the fairness of the valuation can be raised in a suit on them.</p>

<p>1. SLANDER: Sufficient Averment: Words Actionable Per Se. To render spoken words actionable per se they must impute the commission of a crime. Lacking this essential element, the petition must contain preliminary averments designated as a colloquium charging the existence of such facts as will render the words actionable per se.</p> <p>2. -: -: -: Medical Board: Doping Registrants for Military Service. Where plaintiff, a practicing physician and surgeon, was a member of the County Medical Examining Board, and was present at one of its sessions held under the provisions of the Selective Service Law of the United States and engaged in the examination of registrants, and when a man named Anderson came out of the room where the examinations were being conducted and stated in answer to an inquiry that he had not passed, a remark by defendant to one Moore, made in the presence and hearing of others, that if he had been “doped” like plaintiff had “doped” Anderson “you wouldn’t have passed either,” was not actionable per se and cannot be construed as charging plaintiff with the commission of a crime, there being no allegation that the inquiry of Anderson had reference to an examination before said medical board, and none stating in what capacity or for what purpose he had been before said board, either as a registrant subject to examination for military service or that he had been examined by the board under said law; and said facts being material and therefore to be proved must be alleged, the petition did not state a cause of action for slander. The charge of administering “dope” to Anderson cannot be construed as a crime unless it is alleged that he was a registrant subject to examination and military service and that the “dope” was administered to him by plaintiff . for the purpose of rendering him unfit for such service or of misleading and deceiving the board as to his physical fitness.</p> <p>3. -: -: -: Defect Cured by Verdict. Where the petition alleges no cause of action, omitted material allegations cannot be implied from what is stated and the defect cured by a ver-, diet.</p>