Volume 296 — Missouri Reports

Daniel E. Bird, Judge. (1) The court erred in refusing to give the peremptory instructions in the nature of demurrers, requested by defendant. (a) The motorman had a right to assume .the. automobile would stop. Boyd v. Railroad, 105 Mo. 371, 381; MeCreery v. United Rys., 221 Mo. 18; Lewis y. Met. St. Ry. Co., 181 Mo. App. 421 ; Markowitz vv‘ílailroad,.186 Mo. 358; Hicks v. Citizens Ry. Co., 124 Mb.- 115; Gessner v. Met. St. Ry. Co., 137 Mo. App. 53; Barnard-v. Met. St. Ry.

Louis City Circuit Court. — Hon. Moses Hartman, Judge, The court erred in granting a new trial on account of the refusal of Instruction C, requested by plaintiff.

Louis City Circuit Court. — Ron. Victor R. Falkenhainer, Judge. (1) It is fundamental in the law that a judgment of a court in a case in which it has no jurisdiction is not res judicata, and what is said in the opinion in the case, outside of the dismissal, is purely obiter dicta. 23 Cyc. 1124, note 80; Hope v. Blair, 105 Mo. 85; Horn y. Railroad, 88 Mo. App. 469; Dailey v. Sharkey, 29 Mo. App. 518.

<p>1. ■ COUNTY COLLECTOR: Compensation: Commissions on Delinquent , Taxes: Mistake of Law. The County Collector, having retained nine thousand dollars in commissions and fees on taxes collected hy him in the years 1911, 1912 and 1913, could not receive or recover from the county in 1915 a commission of . four per cent on delinquent taxes collected during those years, even if the statute allowed him said commission of four per cent in addition to the nine thousand dollars. Having collected the delinquent taxes during those years and'paid into the county' treasury the extra commission of four per cent under a mistaken view of the law that he was not entitled to retain them, he cannot -in subsequent years recover them hack upon the ground that his construction of the statutes was a mistake and erroneous.</p> <p>2. -: -: -: Not Retainable: Proviso to Section 12927: Exception. Under Subdivision XV of Section 12927, Revised Statutes 1919, the County Collector is not entitled to retain over nine thousand dollars in commissions and fees in any. one year, and having received nine thousand dollars he is not entitled to receive in addition thereto a commission of four per cent of delinquent. taxes collected by him. Section 12929 is a general statute, to which the proviso of Subdivision XV-of Section 12927 is an exception; but tbe two sections are not repugnant, and tbe exception prevails over tbe general statute in a situation to wbicb it is applicable. Tbe proviso requires all commissions and fees in excess of nine thousand dollars coming into tbe bands of tbe County Collector of Bucbanan County from whatever source in any one year to be paid into tbe proper treasuries.</p> <p>3. -: --: -: State’s Share; Quietus. An opinion of tbe Attorney-General presented by tbe State Auditor to tbe County Collector to tbe effect that be was entitled to retain, in addition to bis compensation of nine thousand dollars, tbe four per cent commission on delinquent taxes collected in previous years, amounted to a quietus for tbe State’s share of such commissions.</p> <p>4. -: -: -: Limitations. Tbe Statute of Limitations begins to run in favor of a county collector who has unlawfully retained a commission of four per cent of delinquent taxes collected in former years, at tbe end of tbe fiscal year in wbicb be has retained tbe commissions, to-wit, on March 1st, when be is required to make an annual settlement; and where in January and February, 1915, with full knowledge of tbe county court, he retained or appropriated, out of tbe revenues collected in January and December, four per cent of tbe delinquent taxes collected in tbe years 1911, 1912 and 1913, a suit on bis bond to recover-tbe amount of such commissions so retained was not barred for three years after March 1st, 1915, and if begun on February 28, 1918, tbe three-year Statute of Limitations was not available as a defense to such suit.</p> <p>5. -; -'■ — : -: School Taxes: Recovery by County: Re-mittitur. Under tbe statute (Sec. 12927, R. S. 1919), providing that “all fees and commissions coming into tbe bands of tbe County Collector from any sources. whatever in excess of nine thousand dollars . . . shall be paid into tbe city, county and state treasuries, in proportion to. tbe amount received on taxes collected for each,” the county is not entitled to recover tbe four per cent of delinquent taxes collected for tbe school district -and retained by tbe County Collector. He is not entitled to retain said commissions, they belong to tbe school district as an increment, and should be paid over to its treasury,-but tbe county is not entitled to recover them. But where tbe whole commission of •four per cent of tbe delinquent taxes collected during- three years bad been paid by tbe County- Collector into tbe county treasury, and he in a subsequent year retained out of tbe revenues collected in that year tbe entire amount of those commissions, and it cannot be determined from tbe record tbe proportion thereof that belongs to the school district, a remittitur from the judgment for the whole amount in favor of the county cannot be ordered, but the cause must be remanded to the trial court to ascertain and order the amount of' the remittitur, and enter judgment nunc pro tunc for the balance.</p> <p>6. -: Refusal of Prosecuting Attorney to Sue: Employment of Other Attorneys. Upon the Failure or refusal of the Prosecuting Attorney to obey the order of the county court directing him to bring suit upon the bond of the County Collector for taxes collected and unlawfully retained by him as commissions, the county court has power to employ private counsel to bring the suit, and a suit brought by them in the name of the State may be maintained.</p> <p>7. -:-:-.: Endorsement by Attorney-General: Relation: Limitations. And the signing by the Attorney-General and the newly elected Prosecuting Attorney, by leave of court, of an amended petition filed by the private attorneys employed by the county court, relates back to the filing of the original petition within three years from the time the cause of action accrued, and is sufficient of itself to save the case from the bar of the Statute of Limitations.</p>

<p>1. WILL: Pretermitted Heirs: Bequest to Wife: Not Void as a Whole. The mere omission of the names of heirs, where a legal distrib-utee is named, does not render the will totally void. A will by which testator gave' his entire estate, which consisted of personal property alone, to his wife, who under the statute is likewise a distributee, was not totally void, although it did not mention his children. The legacies to her were not nullities, and the preter-mitted heirs are entitled to contribution from her of only their "proportionate part of the estate. [Distinguishing Burch v. Brown, 46 Mo. 441.]</p> <p>2. -:-:-: Power of Executrix to Pay Legacies. Where the will gave to testator’s wife his entire estate, consisting wholly of personalty; and failed to mention his children, and she qualified as executrix, and though no creditor’s demands were presented or allowed, she paid all his debts out of the proceeds of life insurance policies naming her as beneficiary, the debts thus paid amounting to more than twice the value of his estate, she had the right, without an order of the probate court, to have transferred to her certain bank stock, owned by testator at the time of his death, in discharge of the legacy bequeathed to her by the will, and the pretermitted heirs are not entitled to recover from the bank said stock, or in the event of its subsequent sale by her to others, to recover its value from the bank. After the executrix qualifies she can proceed to dispose of the estate as the will directs, without an order of the probate court, and especially so where there are no estate debts, or she has out of her own funds paid them, for the, debts having been discharged it becomes her duty to discharge the legacies as the will directs.</p> <p>3. -: -: -: -: Bank Stock: Suit Against Bank: Statute: Refund: Partition: Contribution. The statute (Sec. 514, R. S. 1919) says that pretermitted heirs shall be entitled to such proportion of testator’s estate “as if he had died intestate, and the same shall be assigned to them, and all the other heirs, devisees and legatees shall refund their proportional part,” and this statute fixes the remedy of pretermitted heirs, and by using the word “refund” contemplates the previous payment of legacies, and where the entire estate disposed of by the will was personal property the remedy is a proceeding for compulsory contribution. An action against the bank for the value of certain stock owned by testator and transferred by it to the wife, who was the executrix and the sole legatee named in the will, and who after discharging all estate debts, without an order of the probate court, directed the bank to transfer the' stock to her individually, which was accordingly done, cannot be maintained. The widow and executrix having by the will and the transfer acquired title to the certificates of stock, her later transfers thereof were valid, and the remedy of the pretermitted heirs was not an action against the bank, and was not a proceeding in the probate court for partition of the stock, but was one for compulsory contribution under the statute.</p>