author: GRAVES, J.

text:
    THE STATE, Appellant, v. PARKER DISTILLING COMPANY.
    In Banc,
    July 15, 1911.
    1. CONSTITUTIONAL LAW: Title: Not as Broad as Act: Opin- - ions of Courts: Copies to Be Furnished Attorneys. Thetitleof the act is: "An Act to provide stenographers for the judges of the Supreme Court and the judges of the several Courts of Appeals which are now established or which may hereafter be established in this State, and to define their duties and to regulate their salaries and compensation, and to repeal all laws now existing on the same subject.” The body of the act requires the stenographer of each judge of the Supreme Court and of the Courts of Appeals to make four copies of the judge’s written opinion in a case, to furnish one copy to the reporter of the court, and three copies to the clerk, who is required to furnish, free of charge, one copy to the attorney for appellant and another to the attorney for respondent. The act thereby deprived the clerk of the Supreme Court of the fees he was permitted by existing statutes to charge for copies of opinions, and which fees he was authorized to use in paying his own salary and in compensating his deputy and assistants, up to certain named amounts, the excess to be turned into the State treasury. Held, that the title gave no notice that the body of the act deprived the clerk of his right to charge attorneys for copies of opinions, and as to such matters the body of the act is broader than the title, and is therefore void.
    2. -: Public Funds for Private Use: Free Copies of Court Opinions to Attorneys. Since the salaries of stenographers of judges are paid out of the State Treasury, and their stationery, typewriters, etc., are furnished by the State, and since the law permits the clerk of the Supreme Court to charge for copies of opinions filed in his office, and to use so much of the fees thus collected as is necessary to pay his own salary and the salaries of his assistants, and requires him to turn the surplus into the State Treasury, the statute which requires the stenographers of the judges of the Supreme Court and Courts of Appeals to furnish, free of charge, a copy of the opinions of the judge to attorneys of private litigants in a case, is void, since it is an expenditure of public money for a private use, which the Constitution prohibits.
    On Motion ok Attorney-General, kor Etjle on Clerk.
   GRAVES, J.

In this case the Attorney-General asks us for a rule upon our clerk. The case came here upon the appeal of the State from an adverse decision in the court nisi. The judgment of the Court of Criminal Correction was affirmed by our opinion. The motion of the Attorney-General sufficiently states the facts, and thus reads:

“Comes now Elliott W. Major, Attorney-General within and for the State of Missouri; and informs the court that in the case of State of Missouri, Appellant, v. Parker Distilling Company, a corporation, respondent, he appeared for and in behalf of the appellant and as its duly authorized attorney of record, and that in said cause a written opinion was delivered by this court on the 3d day of July, 1911; that three copies thereof, together with one for the official reporter, were prepared by the official stenographer appointed by his honor, Judge Woodson, who wrote the opinion therein, and delivered the same to Honorable J. D. Allen, clerk of this court, as provided by section 11,268 Revised Statutes 1909; that demand for one of such copies, without charge, has been made by informant .upon said clerk and he refuses to deliver same to informant.
“Wherefore informant prays that an order be made directing and requiring said clerk to furnish and deliver to informant, free of charge, • a copy of said written opinion, as provided by said section 11,268.”

The motion for a rule upon our clerk calls for a construction of section 3 of an act approved June 12, 1909. The constitutionality of this act has been questioned by the clerk of this court, and this is a proper occasion to give expression to our views thereon. The act in question (Laws 1909', p. 868.) is thus entitled:

“An Act to provide stenographers for the judges of the Supreme Court and the judges of the several Courts of Appeals which are now' established or which may hereafter be established in this State, and to define their duties and regulate their salaries and compensation, and to repeal all laws now existing on the same subject.”

Section 3, thereof, thus reads: “Each stenographer appointed under this act shall prepare four copies of each written opinion delivered by the judge by whom he was appointed and shall deliver one copy thereof to the official reporter of said court and file three copies thereof with the clerk of such Supreme Court or Court of Appeals, and such clerk shall immediately, and without charge, forward two of such copies to the clerk of the court from which said cause was appealed, to he by him delivered to counsel for the appellant and respondent in the case in which said opinion is delivered.”

Section 4 of the same act, reads: “All former laws and acts authorizing the appointment of stenographers for judges of the Supreme Court and judges of the Courts of Appeals in this State are hereby repealed.”

There are two questions suggested by this motion. Those w'e shall take in order.

I. Prior to this Act of 1909, the clerk of this court had a right under the law to charge certain fees for copies of the opinions filed in any case, if they were furnished to the litigants or to other parties desiring the same. The office, and all the working force thereof, is paid by means of fees. If the office does not earn sufficient money to maintain itself, the State suffers therefrom in reduced service. No salary is paid out of general taxation, hut the salaries of the clerk, his assistants, and deputies are paid solely from the fees earned; If the fees earned do not justify a sufficient working force, this branch of the State’s service is crippled. This, however, is only incidental to the real question. We have set out the title to this bill. • Nowhere in snch title is there an indication that the clerk’s office was to be affected by the proposed law. No man reading this title would have the faintest idea that in the body of the bill was a clause depriving the clerk of this court of a very large part of the revenue necessary to sustain and run the office. Clerks of appellate courts are only named in section 3, supra.

That such portion of this act as pertains to the duties of the clerk of this court, or the respective courts of appeals, is beyond and not covered by the title of the act is too plain for reasonable argument. That such portion of the act would therefore be void as violating the constitutional provision necessarily follows. We have so recently reviewed the authorities on a similar question in the case of Williams v. Railroad Company, 233 Mo. 666, that we shall not reiterate here. The constitutional provision that “no bill . . . shall contain more than one subject, which shall be clearly expressed in the title” is violated by this act. No member of the General Assembly reading this title would be struck with the idea that by one fell swoop a large part of the funds required to maintain the office of the clerk of the Supreme Court was being donated to litigants. We shall not elaborate further, but refer to the Williams case, supra, for a collation and review of our own cases on the subject. That portion of the law requiring action upon the part of the clerk is void, and for that reason, if not for others, the motion and application for a rule upon our clerk must be denied.

II. To my mind there is another reason which renders this section three void both as to the clerk and the stenographers therein named. Both are paid out of public funds. The clerk, it is true, collects his funds by way of fees, but if there be a surplus, such surplus must go into the State Treasury, so that he is in fact paid out of public funds. This section requires the expenditure of public funds for private use which cannot be done. The State buys and pays for the paper used by the stenographers. The State pays the stenographers for their services out of public funds. The State buys and pays for the machines which are worn out in the service. The State buys and pays for the stamps used for the transmission of these copies required to be furnished to the litigants. Under these circumstances to my mind it is clear that, as to private litigants, this law contemplates the appropriation of public funds for the benefit of individual litigants, and is therefore void. I can see no difference between the State paying for a copy of an opinion for each litigant in all the lawsuits decided by this court and the Courts of Appeals, and the State voluntarily paying from the public crib the costs of the suits of these several litigants. The questions only differ in the number of dollars and cents involved. What we have said refers to private litigants, and may not be applicable to the case at bar. The State might have the right to require its officers to render such service to it, and we think that it would have such right. In such case there would not be the use of public funds for private use. The use in this instance would be a public one. If therefore, this law was not void by reason of the question discussed in our paragraph one, we would have grave doubts as to whether the rule upon our clerk should be refused in this, a State case. We would have no doubt, as above stated, if the application came from a private litigant.

III. There is another peculiarity about this Act of 1909. We have set out in our statement the repealing clause of the bill. It does not purport to repeal any law except former laws pertaining to stenographers. There is no attempt to repeal any law relating to clerks of courts.

Upon the whole we hold that said section three of this act is, so far at least as it relates to clerks, invalid, and the rule asked for in the application of the Attorney-General will he refused.

Valliant, C. J., and Lamm and Woodson, JJ., concur; Brown, J., concurs in first paragraph and result; Kennish, J., concurs in result; Ferriss, J., absent.


source: Caselaw Access Project

author: KENNISH, J.

license: Public Domain

text:
    THE STATE ex rel. TERMINAL RAILROAD ASSOCIATION v. DANIEL O’CONNELL TRACY, JUDGE, and CITY of ST. LOUIS.
    In Banc,
    October 24, 1911.
    1. PROHIBITION: Injunction: Distinction: Jurisdiction. A writ of prohibition may be likened to the equitable remedy by injunction against proceedings at law. But an injunction against proceedings at law is directed only to the parties litigant, without in any manner interfering with the court, while a prohibition is directed to the court itself, commanding it to cease to exercise a jurisdiction to which it has no legal claim. The right to injunction implies a wrong threatened by parties litigant; a prohibition, that a wrong is about to be committed by a court or judge assuming to exercise a judicial power it does not possess.
    2. -: Grounds: Oppresüon and Abuse of Jurisdiction:. Unless the court sought to be prohibited is wanting in jurisdiction over the class of cases to which the pending case belongs, or is attempting to act in excess of its jurisdiction in a case of which it rightfully has cognizance, the writ of prohibition will be denied. There is no exception to that rule. If the court has jurisdiction of the pending case, the writ cannot be used to prohibit it from trying that or similar cases on the ground that its jurisdiction is being abused by the city in bringing numerous suits under an ordinance which does not make relator’s acts an offense, and the court is vexatiously oppressing relator by rendering judgments against it therein.

      3. -: -: -: Police Court: Obstruction of Streets: Multitudinous Suits: Defective Information. Where the police court has jurisdiction of all eases for the violation of city ordinances and the prosecutions complained of are for alleged violations of said ordinances (and said jurisdiction is admitted by a return asserting it and a motion by relator for judgment on the pleadings), the writ of prohibition cannot be used to restrain the judge of said court from proceeding to try the pending and similar causes, either (1) on the ground that the informations in the two hundred pending cases are all defective, or (2) that the ordinance which they charge relator with violating, namely, the section relating to obstruction of the streets, does not have reference to the moving of railroad trains across streets, which is the only offense relator has committed, or (3) that, in spite of the inapplicability of the ordinance to relator’s acts, the police court is daily proceeding to assess numerous fines against relator, and the city will not agree to desist in said prosecutions until the validity of the judgments can be determined by the proper appellate court in the similar causes already appealed.
    Prohibition.
    Writ denied. .

      T. M. Pierce and J. L. Howell for relator.
    The preliminary writ in prohibition having issued as an exercise of discretion by this court, this case should be decided upon its merits, in the furtherance of justice. According to the authorities of this State and recognized text-writers, a writ in prohibition will be ordered by a superior court to curb and restrain a lower court in the following instances: First, When the lower court has no jurisdiction; Second, When the lower court is proceeding in excess of its jurisdiction; Third, When the instrumentalities of the lower court are being used for purposes of oppression, and the jurisdiction of the court abused. The most familiar example of the first ground for prohibition is when the legislative authority, which the lower court has assumed as a predicate for action, is unconstitutional and void. State ex rel. v. Weithaupt, 133 S. W. 329. An example of the second ground for prohibition is when a court attempts to appoint a receiver in a case not justified by law. Railroad v. Wear, 135 Mo. 230; State ex rel. v. Ross, 122 Mo. 435; State ex rel. v. Hirzel, 137 Mo. 435. An example of the third ground for prohibition is when a court permits multitudinous and innumerable prosecutions to be urged for purposes of coercion and embarrassment. State ex rel. v. Eby, 170 Mo. 526.

      Lambert E. Walther and William E. Baird for ■respondents.
    (1) Where the inferior court has jurisdiction over the class of cases to which the pending case belongs, prohibition will not lie, unless it appears that the court has abused its powers or has entertained the case for improper purposes. High, Extra. Remedies (3 Ed.), sec. 767; State ex rel. v. Withrow, 108 Mo. 7; State ex rel. v. Railroad, 100 Mo. 59; State ex rel. v. Searritt, 128 Mo. 331; Delaney v. Police Court, 167 Mo. 679; State ex rel. v. Stobie, 194 Mo. 14; State ex rel. v. Ross, 122 Mo. 435. (2) Jurisdiction of the subject-matter is the power to deal with the general abstract question, to hear the particular facts and to determine whether or not they are sufficient to invoke the exercise of that power. Foltz v. Railroad, 60 Fed. 318; State ex rel. v. Railroad, 100 Mo. 59; Schubach v. McDonald, 179 Mo. 182'. (3) “If the inferior court has jurisdiction over the class of cases to which the pending ease belongs, it has the power to decide whether the petition does or does not state a cause of action, and the mere failure of a petition to state a cause of action or the defective statement of a good cause of action, in no way affects the jurisdiction of the court.” High, Extra. Remedies (3 Ed.), see. 767a; State ex rel. v. Railroad, 100 Mo. 59; Dowdy v. Wamble. 110 Mo. 285; State ex rel. v. Searritt, 128 Mo. 339; Schubach v. McDonald, 179 Mo. 182. (4) Although police courts have limited jurisdiction, yet when they are once possessed of jurisdiction, the same presumption as to their conduct is indulged as is accorded courts of general jurisdiction. Delaney v. Police Court, 167 Mo. 679; Ellis v. Jones, 51 Mo. 186; Wertheimer v. Mayor, 29 Mo. 254. (5) Assuming, however, that jurisdiction is determined solely by the sufficiency of the petition or information, the informations in.question state-a cause of action, because Sec. 1224 of the revised ordinances prohibits any obstruction in a street which is not authorized by ordinance and is not incident to the ordinary uses of' a street, and the operation of steam railroad trains over streets is not one of the ordinary uses of such streets. Sherlock v. Railroad, 142 Mo. 172.
   KENNISH, J.

This is an original proceeding in prohibition brought by the relator, Terminal Railroad Association of St. Louis, against the respondents, Daniel O’Connell Tracy, Judge of the First District Police Court of the city of St. Louis, and the city of St. Lotus. Relator filed its petition in this court on the 28th day of June, 1910. A preliminary rule in prohibition was issued against respondents as prayed and made returnable to the October term, 1910. In due time the respondents filed their return to the writ. The relator moved for judgment on the pleadings and the cause being thus at issue is submitted for decision.

The pleadings are lengthy and we do not deem it necessary that they should be set forth in this statement. The facts determinative-of the case stand admitted by the respondents’ return and by the relator’s motion for judgment on the pleadings.

The allegations of the petition are substantially as follows: That relator is a railway corporation, organized under the laws of this State, and in accordance with said laws and the ordinances of the city of St. Louis, is engaged in the business of a terminal railroad company within the limits of said city, reeeiving, transporting and delivering cars and trains of cars from the various railway companies connected with its terminal lines, and in switching ears to and from industries and manufacturing companies within said city and to and from the Union Station, which station is owned and controlled by relator; that the respondent, the city of St. Louis, is a municipal corporation, organized and existing under a special charter adopted by its citizens in accordance with the Constitution and laws of this State; that the respondent Tracy, at the times mentioned, was and is acting justice of the First District Police Court of said city, possessing jurisdiction of all suits for the recovery of any fine, forfeiture or penalty imposed for the violation of any ordinance of said city. That there are pending before respondent Tracy, as acting justice . of said police court, against relator, about two hundred separate cases for alleged violations of a certain ordinance, instituted by the respondent city and set for trial; that seventeen cases for such alleged violations of said ordinance have been prosecuted to final judgment against relator in said police court and fines imposed amounting to the total sum of seven thousand and fifty dollars, from which judgments appeals have been taken to the court of criminal correction of said city; that in some of the cases so appealed to the latter court judgments have been rendered against relator and fines imposed, aggregating th¿ sum of eighteen hundred dollars; that all of said prosecutions are based upon alleged violations of ordinance No. 22902, sec. 1224, of the ordinances of said city, which section is as follows:

“Whoever shall himself, or by another, place upon any highway or other public place any obstruction not authorized by ordinance, or make any excavar tion in such place without lawful authority, or displace or remove any stones, stakes or other landmark placed by any officer of this city under authority thereof, or injure or deface any property, or violate any provisions of this ordinance for violation of which no specific penalty is provided, shall forfeit and pay not less than ten dollars.”

That said prosecutions were instituted by the city attorney of the respondent city by filing informations identical in form, except where there is a difference in the streets alleged to have been obstructed, and that many of the informations relate to- the same streets and portions thereof; that the said informations, omit-ting caption and signature, are in the following form,. to-wit:

“Terminal Railroad Association of St. Louis, a Corporation. To the City of St. Louis, Dr.
“To five hundred dollars, for the violation of an ordinance of said city, entitled ‘An ordinance in revision of the General Ordinances of the City of St. Louis, being ordinance No. 22,902, Section 1224, Approved March 19, 1907.’
“In this, to-wit:
“In the City of St. Louis and State of Missouri, on the-day of-, 1909, and on divers other days and times prior thereto, the said Terminal Railroad Association of St. Louis, a corporation, did then and there place and cause to be placed upon the public highway, known as - street, at or near City Block - — , an obstruction not authorized by or-. dinance consisting of engines, cars and trains of cars operated and run over tracks lying across-street aforesaid.
“Contrary to the ordinance in such ease made and provided.”

It is further alleged that no charge or allegation is contained in any of said informations that the tracks of relator were not laid, constructed or maintained ■upon or across said streets with authority of law and with the consent of said city; that there is not now and was not at any of the times mentioned any ordinance of said city forbidding the operation or movement of engines, cars or trains of cars across any street of said city, as appears from the printed and published ordinances of said city, which ordinances are exhibited with and made a part of the petition; that the said city has now printed one' thousand blank informations and is filling and filing the same and if not prohibited from so doing by this 'court will continue to file other and further informations of the same character and will continue such prosecutions, to the great and irreparable injury’ of the relator and to the destruction of its business; that relator has presented the jurisdictional questions against said prosecutions both to said police court and to the court of criminal correction and its motions and objections have been overruled and disregarded, and that the respondent court, being without jurisdiction in the premises, is wrongfully, illegally and oppressively asserting and exercising jurisdiction in such causes against relator’s constitutional rights and will continue to do so unless prohibited by this court; that by reason of said prosecutions relator is compelled, at great cost and expense, to keep its attorneys almost constantly engaged in the defense thereof and in filing bonds and perfecting appeals therein; that the remedy of appeal is wholly inadequate, and that relator has endeavored in vain to obtain the consent of said city to stop the bringing of said suits and the prosecution of all except one, in order that the rights of the parties may be finally determined by the result of an appeal to this court.

It is further alleged that said section 1224 of the ordinances of said city, against the provisions whereof the relator is alleged to have offended, relates solely to objects placed and at rest in the public highways in said city and not to vehicles in motion, operated along, upon or across the same, and has no reference to or bearing upon the right to operate engines, cars or trains of cars upon, along or across the city’s streets; that the regulation and operation of steam cars or steam railroads in said city are controlled and governed by the provisions of article 5, chapter 23, of said ordinances, embracing sections 1852 to 1862 inclusive; that in proceeding against relator under said informations said police court “is acting in excess of its jurisdiction and powers, and is proceeding in grievous abuse of its powers, in holding your relator under the circumstances hereinbefore recited, to defend against all or any number of said alleged informations, and it prays this court to protect it against the hardships, injustice and oppression involved in requiring it to defend against all of said two hundred and ten alleged informations.”

Relator has filed'as exhibits with its petition copies of the sections of the ordinances of said city fixing and defining the jurisdiction of the police court, together with a descriptive list of the cases now pending against it in the said police court and the court of criminal correction.

The facts set forth in relator’s petition are substantially admitted in respondents’ return. Respondents affirmatively plead in the return, and it stands admitted by the motion for judgment on the pleadings, that by the charter of the city of St. Louis the First District Police Court is vested with exclusive original jurisdiction over all cases involving the violation of the ordinances of said city, including jurisdiction over offenses for the placing of obstructions in the highways, of said city, and that in entertaining jurisdiction of the cases referred to in the relator’s petition said police court acted by virtue of the authority and power so conferred by said charter and not otherwise.

The foregoing is deemed a sufficient statement of the facts for the purposes of this opinion.

The remedy by writ of prohibition is of ancient origin in our system of jurisprudence. The principles of law governing its issuance and the facts necessary to warrant relief by that extraordinary writ have frequently been the subject of adjudication in this and other courts of last resort, as well as the theme of much learning by the text-writers. It has been likened to the equitable remedy by injunction against proceedings at law. The object in each case is the restraining of legal proceedings, but, as has been said: “This vital difference is, however, to be observed between them: an injunction against proceedings at law is directed only to the parties litigant, without in any manner interfering with the court, while a prohibition is directed to the court itself, commanding it to cease from the exercise of a jurisdiction to which it has no legal claim.” [High’s Extraordinary Legal Remedies (3 Ed.), see. 763.] There is this further similarity between the two remedies thus compared, which is of importance in the consideration of the case in hand, namely, that' as the right to the remedy by injunction implies a wrong threatened by the parties litigant against whom the relief is sought, so the right to the writ of prohibition implies that a wrong is about to be committed, not by the parties litigant, as in the case of injunction, but by the person or court assuming the exercise of judicial power and against whom the writ is asked. Indeed, it may be said generally of all procedure in courts of justice for the enforcement of civil rights, that the existence of a remedy on the one hand implies actionable wrong on the other. It follows that to entitle a relator to a writ of prohibition it should be made to appear that it is within the power and that it is the duty of the person or court proceeded against to refrain from taking the threatened judicial-action which is made the basis of the complaint. The judicial wrong or fault which calls for the writ of prohibition does not mean an infraction of personal rights only, but rather an offending of the court by an assumption of judicial power and jurisdiction not authorized by law.

Relator states in its brief that the writ of prohibition will be ordered by a superior court to curb and restrain an inferior court in the following instances: “First, When the lower court has no jurisdiction. Second, When the lower court is proceeding in excess of its jurisdiction. Third, When the instrumentalities of the lower court are being used for the purposes of oppression, and the jurisdiction of the court abused.”

The first two grounds thus stated are recognized as settled law in the adjudged cases, and if the facts of a given case show either want of jurisdiction or excess thereof, together with an absence of an adequate remedy at law or in equity, a case is made warranting the issuance of the writ. It should be observed that, although want of jurisdiction and excess of jurisdiction are commonly referred to and considered as separate grounds for the issuance of the writ, there is in principle little distinction between them, as each means an attempt by a court or person to take judicial action without judicial power or authority for such action.

The third ground, as stated by relator, is rather vague and indefinite, and seems to assert the proposition that there exists a basis for the issuance of the writ independent of and not comprehended within either of the first two grounds. This contention is the main question before us for decision and a consideration of the admitted facts of this case makes obvious the importance and necessity to relator of its ability to maintain that proposition.

An examination of the authorities upon the law governing the issuance of this extraordinary writ has brought to our attention, among others, the following: • ■

“The sole question for determination upon an application for the writ of prohibition is whether or not the inferior court has usurped jurisdiction or exceeded its lawful powers, and the writ is always refused where it appears that the court has jurisdiction over the matter complained of.” [16 Ency. PI. and Pr. 1125.]
“Upon an application for a writ of prohibition to stay the action of an inferior court, the sole question to be determined is the jurisdiction of that court.” [High’s Extraordinary Legal Remedies (3 Ed.), 767b.] “In all cases, therefore, where the inferior court has jurisdiction of the matter in controversy, the superior court will refuse to interfere by prohibition, and will leave the party aggrieved to. pursue the ordinary remedies for the correction of errors, such as the writ of error or certiorari. In the application of the principle it matters not whether the court below has decided correctly or erroneously; its jurisdiction being conceded, prohibition will not go to prevent an erroneous exercise of that jurisdiction.” [High’s Extraordinary Legal Remedies (3 Ed.), sec. 772.]
. “The court will exercise its authority to issue writs of prohibition to courts of inferior jurisdiction, only in cases where such courts clearly exceed their jurisdiction, or attempt to usurp a jurisdiction belonging to some other forum.” [2 Spelling on Injunctions and Other Extraordinary Remedies (2 Ed.), see. 1723.]
' “The broad governing principle is that a prohibition lies where a subordinate tribunal has no jurisdiction at all to deal with the cause or matter before it; or where, in the progress of a cause within its jurisdiction, some point arises for decision which the inferior court is incompetent to determine. But a prohibition will, not he where the inferior court has jurisdiction to deal with the cause and with all matters necessarily arising therein, however erroneous its decision may be upon any point.” [Shortt on Mandamus and Prohibition, see. 436.]
' “Where the lower tribunal has jurisdiction of the parties and of the subject-matter prohibition will not lie.” [32Cyc. 605.]

See also 16 Ency. PI. and Pr. 1094; High’s Extraordinary Legal Remedies (3 Ed.), secs. 762, 764a, and 771a; 2 Spelling on Injunctions and Other Extraordinary Remedies (2 Ed.), secs. 1716 and 1752; Wood on Mandamus, Prohibition, etc., 147; Lloyd on Prohibition, 48.

And from the decisions of this court the following:

“A writ of prohibition issues from a superior to an inferior court, to restrain the latter from exceeding its jurisdiction. [5 Bacon 446, Prohibition.] The justice clearly had jurisdiction, and the writ was improvidently issued.” [Morris v. Lenox, 8 Mo. l. c. 253.]
“Such jurisdiction being conceded, it clearly follows that a writ of prohibition will not issue to prevent its erroneous exercise., • Some other remedy must be resorted to.” [Wilson v. Berkstresser, 45 Mo. l. c. 286.]
“The question is not whether the court was authorized to render the judgment entered, but whether it had jurisdiction to enter any judgment at all.” [State ex rel. v. Burckhartt, 87 Mo. l. c. 538.]
“The purpose of the writ is to prevent the inferior tribunal from assuming a jurisdiction with which it is not legally vested. If the lower court has jurisdiction to determine the question before it, prohibition will not lie.” [State ex rel. v. St. Louis Court of Appeals, 99 Mo. l. c. 221.]
“The question for decision is whether this court can properly and lawfully prohibit the circuit court from further taking cognizance of the application made to it by the plaintiffs in said injunction case. This depends upon whether that court was entirely wanting in jurisdiction to grant said injunction on the showing made in the petition, or whether, granting it had jurisdiction in that class of cases, it has not exceeded its jurisdiction.” [State ex rel. v. Wood, 155 Mo. l. c. 445.].
“The jurisdiction of the police court to try cases for violation of municipal police regulations, leveled at disorderly conduct and drunkenness on the streets, is exclusive. Its procedure in the exercise of its jurisdiction may or may not be erroneous, but so long as i-t has jurisdiction, and acts within its jurisdiction, its rulings and proceedings can not be reviewed or corrected by means of a writ of prohibition, no matter how erroneous such rulings and proceedings may be. Mere error or irregularity or mistake, be it ever so manifest, which does not amount to an excess of jurisdiction, will not b,e ground for a prohibition.” [Delaney v. Police Court, 167 Mo. l. c. 679.]

See also State ex rel. v. Klein, 116 Mo. 259; State ex rel. v. Scarritt, 128 Mo. 331; State ex rel. v. Moehlenkamp, 133 Mo. 134; Wand v. Ryan, 166 Mo. 646; Schubach v. McDonald, 179 Mo. 163, and State ex rel. v. Stobie, 194 Mo. 14.

Upon the foregoing authorities it may be safely asserted, as settled law and without exception, that unless the court sought to be prohibited is wanting in jurisdiction over the class of cases to which the pending case belongs, or is attempting to act in excess of its jurisdiction in a case of which it rightfully has cognizance, the writ will be denied.

It is contended by relator that the information fails to state a cause of action and therefore that the court is without jurisdiction and the writ should be issued for that reason, especially in view of the number of informations pending and about to be filed. This position is clearly untenable and no authority is cited in its support. If the lower court has jurisdiction of the class of cases to which the said prosecutions belong, then there can be no doubt of its jurisdiction to determine the sufficiency of the information, leaving the losing party the right to have such judgment reviewed on appeal. It stands admitted in this record that the police court has exclusive jurisdiction of all cases for the violation of city ordinances and that the prosecutions complained of are for the alleged violations of said ordinances. It follows that said court must have the right to determine whether the informations coming before it charge or fail to charge a violation. of said ordinances, and the writ of prohibition “cannot be rightly employed to compel a judicial officer, having full jurisdiction over the parties and a cause, to steer his official course by the judgment of some other judge, or to substitute the opinion of another court for his own in dealing with the topics committed by the law to his decision.’!

“Where jurisdiction over the parties and the subject of the cause is (as in this instance) clear, any error of the trial court in ruling on the sufficiency of the pleading forming the basis of the suit cannot be corrected by resort to a writ of prohibition.” [State ex rel. v. Scarritt, 128 Mo. l. c. 340.]

In State ex rel. v. Stobie, 194 Mo. l. c. 52, this court said: “If the court has jurisdiction of the class of cases to which the proceeding sought to be prohibited belongs, and acquires jurisdiction of- the subject-matter, the mere fact of defects in the petition or complaint by which the proceeding was inaugurated, will not authorize the issuance of a writ of prohibition.” And see State ex rel. v. Railroad 100 Mo. l. c. 61; Schubach v. McDonald, 179 Mo. l. c. 182; High’s Extraordinary Legal Remedies (3 Ed.), sec. 767a; State ex rel. v. Lucas, 236 Mo. 18.

Relator states in its brief: “An example of the third ground of prohibition is when a court permits multitudinous and innumerable prosecutions to be urged for purposes of coercion and embarassment, as in State ex rel. v. Eby, 170 Mo. l. c. 526, wherein the court said: ‘It has, however, been urged by counsel for respondent that inasmuch as relators have a remedy by appeal, etc., in consequence of this, prohibition cannot be granted. But this is an erroneous view because in a case like this, where relators, if they could not have the relief prayed would be compelled to go to trial in twelve hundred and three cases; then, if defeated, would have to give bond in each case, take an appeal in each case, pay for a transcript in each case, pay a docket fee in each ease of $10.00, such fees amounting in the aggregate to twelve thousand and thirty dollars, as well as counsel fees in each court. Consequently, it must be conspicuously obvious that such appeals, although available, would be “inadequate to meet the emergencies of the case, or afford the redress to which the injured party is entitled.” [2 Spelling, Inj. and Extr. Rem. (2 Ed.), see. 1725, and cases cited.]’ ”

Relator has misinterpreted the language quoted from the Eby ease. It is apparent that the court was not there dealing with the question as to the grounds upon which the writ should be issued, but the question whether (one of the necessary grounds existing) the court should deny the writ for the reason that the relator had an adequate remedy by appeal. In the preceding part of the opinion the court had held that the law upon which the prosecution in the trial court was based, was unconstitutional and had been repealed, and the court, 1. c. 522, said: “Under the foregoing authorities, does this record present on its face the posture of there being an absolute want of jurisdiction in the lower court to try the one thousand, two hundred and three informations filed against relators in the Pike Circuit Court? That it does, we entertain no doubt.” And again, 1. c. 526: “Of course if the law is unconstitutional which is made the basis of the proceedings, the case is one where it is obvious on the face of such proceedings that the trial court has no jurisdiction, and prohibition will consequently he.”

Respondents in that case had urged that even if the trial court was without jurisdiction the writ should not be granted for the reason that the trial court had power to pass upon the question of its own jurisdiction; that that was a proper matter of defense and there was an adequate remedy by appeal. Responding to that contention, in the language quoted by the relator, this court held that the remedy by appeal was not adequate' and that as the trial court was without jurisdiction, the facts of the case warranted the issuance of the writ. In so holding this court was within the general law, as shown by the foregoing authorities, and as applied to the facts of the case before it.

The case of State ex rel. v. Ross, 122 Mo. 435, is also cited and relied upon to sustain the contention that the writ may properly be granted when want of jurisdiction or excess of jurisdiction is not shown as a basis therefor. In the Ross cáse it was held that when a circuit court had acquired jursidiction and appointed a receiver in a proceeding pending therein, another court of concurrent jurisdiction would be prohibited by this court from entertaining jurisdiction in a suit subsequently brought for the same purpose. A construction has been placed upon that ease as holding that since the court in which the second proceéding was instituted had jurisdiction of the subject-matter and of the person it follows that this court countenanced the issuance of the writ where neither want nor execss of jurisdiction was shown in the court prohibited. An examination of the decision in that case will disclose that this court based its action in issuing the writ upon the ground of want of jurisdiction in the lower court, for, as stated in the syllabus, “Where, in the foregoing action, a receiver has been appointed, the petitioner is entitled to a writ of prohibition against interference by another court and by its receiver appointed without jurisdiction.” But the exclusive character of the jurisdiction of the court in which the receivership action is first brought, and which also shows the ground upon which the writ was issued in the Ross case, supra, has been clearly stated in a recent decision of this court. In the ease of State ex rel. v. Reynolds, 209 Mo. l. c. 182, Woodson, J., voicing the unanimous opinion of this court, said: “Whenever the jurisdiction of a court of competent Authority takes jurisdiction of a case that fact must of necessity and in the very nature of things exclude the jurisdiction of all other courts over the same case, as well as all the incidents thereto, excepting only such courts as are given appellate and supervising control over them. The reason for this rule seems to be that when such a court takes jurisdiction of a particular ease, with all the incidents thereto, there remains nothing of it to which the jurisdiction of another court can attach — no case, no parties, no subject-matter is left exposed to the authority of the latter court.”

In the case before us it appears from the admitted facts that the respondent Tracy, as judge of the police court, possessed not only jurisdiction, but exclusive jurisdiction, of the prosecutions pending and threatened against relator in that court. There is no fact alleged tending to show the exercise or threatened exercise of jurisdiction in excess of his judicial power and authority, or that he has assumed or is about to assume any power other than that conferred uponbim by the charter of the city and required of him by his oath of office. While, so acting in the line of his duty and within the scope of his judicial power as prescribed by the charter, it cannot be maintained, in the light of the authorities heretofore cited, that he should be restrained and prohibited by the extraordinary writ of prohibition which issues only to prevent the usurpation of judicial power. The prosecutions complained of by relator may be vexatious because of their multiplicity, but it is not alleged that respondent, as judge of said police court, is in any manner responsible for the number of cases so instutited by the prosecuting officers of the city or that he has any authority to prevent the filing of such cases. If the police court was possessed of jurisdiction to hear and determine one of said prosecutions against relator, it could not be guilty of an abuse of judicial power or ' excess of jurisdiction solely because it entertained jurisdiction of a larger number. And it does not appear what respondent as such judge could have done in the . premises other than what he has done, to have avoided being visited by the extraordinary writ of this court.

In the earlier part of this opinion it is suggested that if relator is entitled to relief against the respondent, as judge of the police court, it must be because he has taken or is about to take some action which would be in violation of relator’s rights. And the wrong which would warrant the issuance of this writ can be only such a wrong or fault as amounts to usurpation of judicial power. In the case of State ex rel. v. Stobie, 194 Mo. 14, it was contended that the prosecution pending before the justice of the peace against whom the writ was asked, was instituted in bad faith by the prosecuting witness and that the writ should be'issued .to prohibit the respondent justice of the peace from entertaining further jurisdiction in the cause. Answering that contention, this court, 1. c. 62, said: “It is immaterial, so far as conferring jurisdiction upon the justice, what the objects and purposes of the prosecution were. William Mathews was the complainant in said cause before, the justice and filed the charge against the relators and must be treated, so far as the .disclosures of the petition are concerned, as the prosecuting witness; hence, the allegations upon which this contention is predicated are directed solely to the respondent Mathews. He made the charge and the petition avers the improper object and purpose in making it. The said allegations apply to the prosecutions of the charge, and Mathews is the complainant and prosecuting witness; hence those allegations are exclusively directed to Mathews. There is an entire absence of any charge in the petition that the justice of the peace acquired and assumed jurisdiction of said cause for the objects and purposes attributed to Mathews in making the charge, and in his prosecution of it, or that the judge had any knowledge of such objects and purposes. The objects and purposes of Mathews or any one else in making a charge and prosecuting it against relators for the commission of a misdemeanor, absolutely have nothing to do with the jurisdiction acquired by the justice, and can in no way affect such jurisdiction. Even though the justice entertained the purposes attributed to Mathews, while it would be reprehensible in him as an officer, and would furnish a sufficient reason to the relators to invoke the aid of the provisions of the statute providing for changes of venue, it does not go to the jurisdiction of the justice and furnish a basis for the issuance of the writ of prohibition.”

After a full and careful consideration of this cause, we are convinced that this court would not be warranted in issuing its extraordinary writ of prohibition against the respondents, and we hold that the prehminary rule should be quashed and the writ denied. It is so ordered.

All concur except Graves and Lamm, JJ., who dissent.


author: ROY, C. PER CURIAM.

text:
    KATHERINE A. FARLEY et al. v. WALTER F. WELCH et al., Appellants.
    Division Two,
    November 14, 1911.
    1. BILL OF EXCEPTIONS: Special Judge. Where the abstreet shows that the cause was tried by a special judge and appellants were given leave to file their bill of exceptions at the next term, and the bill shows it was approved by that special judge at that term and ordered filed, the bill will not be rejected on appeal simply because the record is silent on the point as to whether- or not said special judge presided at said next term at which the bill was signed by him and filed.
    2, WILL: Election of Devisees-to Take Interest of Others in Real Estate: Exercise. Where the testator gave to each of four children an undivided one-fifth in his real and personal estate, and the other fifth to a daughter and the heirs of her body, but further provided that the real and personal estate should be appraised, and thereupon two of the sons, upon a delivery to each of the others of a fifth of the appraised value of the entire estate, might take the land as their own, and the real estate was appraised, and they took from the daughter a deed reciting the payment of a consideration equal to one-fifth of the appraised value of the real estate, and there is nothing in the record from which it can be inferred that she received a full one-fifth of the estate or any part of the personal estate, the bodily heirs of said deceased daughter will be held to have a fifth interest in said real estate, and the deed to have conveyed only her life estate, and that the sons did not exercise their power of election.
    Appeal from Randolph. Circuit Court. — Hon. Willard P. Cave, Special Judge.
    Affirmed.

      John M. Dickson for appellants.
    (1) The intent of the testator was that the four children and the grandchild should each get one-fifth in value of the estate. So far as the interest of Margaret Ellen Moran is concerned, it was to consist exclusively of personalty, it being expressly contemplated by the will that either the four children or the two sons should take the farm. If the four children took it, then it was the duty of each of them to give to Margaret Ellen Moran’s trustee their pro rata of the value of one-fifth of the farm. Whereas, if by election or agreement the two sons took the farm, then it was their duty to account for the one-fifth of the farm to the trustee of Margaret Ellen Moran, one-fifth to Margaret C. Welch, and one-fifth to Agnes Farley for herself and the heirs of her body. (2) Whether we consider the action of Agnes Farley an election under the will, or the exercise of a power, the result is the same. Powers may be exercised by married women. Washburn, Real Property (3 Ed.), sec. 1685; Wisker v. Rische, 167 Mo. 531; 3 Pomeroy, Eq., secs. 1159 (note 2), 1160 and 1162; Lorrilard v. Coste, 5 Paige, 172; Howard v. Pavey, 128 111. 430; Allen v. Watts, 98 Ala. 480; In re MeKey,75 N. Y. App. Div. 78, 9 Cyc. 833; Ex parte McBee, 63 N. C. 332; Cruse v. Barley, 3 P. Wms. 19; Keim’s Est., 201 Pa. St. 609; Lloyd’s Appeal, 194 Pa. St. 437; Beatty v. Byers, 18 Pa. St. 105; Pyle’s Appeal, 102 Pa. St. 317. Acts evincing an interest to execute a power where the donee of power has only an estate for life or is a married woman or is simply the donee of a power. Warner v. Ins. Co., 109 U. S. 557; Clermontel’s Estate, 12 Phila. 139; Cuerman.v. Broadax, 37 N. J. L. 508; Yan Syckett’s Estate, 24 Pa. Co. Ct. 241; Lane v. Lane, 64 L. R. A. 855 and note; 2 Sto. Eq., sec. 1062, note A. (3) If an interest and power of sale over the same real estate exist in the same person, a conveyance made by him without reference to the power, will not be deemed an execution of the power, but merely a conveyance of the individual interest. In a number of late eases, however, it has been held that where under such circumstances the deed conveys the entire fee, it will operate as an execution of the power because in no other way can full effect be given to it. Especially is this the ease where, in a conveyance by a life tenant with power of appointment, the consideration is adequate for a conveyance in fee. 22 Am. and Eng. Ency. Law (2 Ed.), 1118; Owen v. Ellis, 64 Mo. 77; Campbell v. Johnson, 65 Mo. 439; Underwood v. Case, 176 Mo. ■1; Scheidt v. Crecelius, 94 Mo. 322; Boyer v. Allen, 76 Mo. 498; St. L. B. & L. Assn. v. Fueller, 182 Mo. 109; Lane v. Lane, 64 L. R. A. 849. Family settlements: Palethorp Estate, 168 Pa. St. 98. A partition can bind unborn heirs of the body of the tenant for life or in tail. Reinders v. Koppelman, 68 Mo. 482; Thomas v. Tyler, 2 Vernon, 233.

      Higbee & Mills for respondents.
    (1) Mr. Cave was elected to hold court for the remainder of the June term, 1906, at the “end of which term he > went out of office and eeased to be judge for any purpose.” The amended abstract recites he signed the bill during the January term, 1907, and that the court ordered it filed. It does not recite that he was elected to hold the January term or that he held it. The bill could only be signed by Judge Waller. Berry Bros. v. Leslie, 131 Mo. App. 236; Ranney v. Packing Co., 132 Mo. App. 324; Viertel v. Viertel, 212 Mo. 562. -He had the power of judge during the June term only (R. S. 1899, sec. 1682), and the bill could only be signed by Judge Waller (R. S. 1899, sec. 731). A different rule prevails where a judge disqualifies and an attorney is selected as special judge to try the ease. The will plainly and positively devised one-fifth of the testator’s real and personal estate to Agnes Farley and the heirs of her body. Her interest was expressly limited to a life estate, with remainder in fee to the heirs of her body, the plaintiffs. Bone v. Tyrrell, 113 Mo. 175; Chew v. Kellar, 171 Mo. 215; Miller v. Dunn, 184 Mo. 318. The sixth clause of the will gives each of the five legatees the option to take in kind not to exceed one-fifth of the personal estate. This clause also expressly limits the right of any child to take lands at their appraised value, with said personal property in amount not to exceed said fifth part, and then to clinch the matter it concludes, “but be it understood definitely that no one shall take to exceed a fifth part of my estate.” (3) There is nothing in the will repugnant to this clearly expressed devise of an estate in remainder in fee to the bodily heirs of Agnes. Having been devised to them by the most clearly approved and technical language to create a remainder in fee, no subsequent words or provisions could cut down or qualify the estate so devised unless as affirmatively .strong as those whieh devised the estate to them. In fact, if there had been any attempted qualification of the estate so devised (and there was none), it would be repugnant to the estate first devised and void, but there is no repugnancy in the will, nor any attempt to qualify or cut down the remainder so devised. The provision that Agnes should take her legacy as her separate estate is not in any sense repugnant to the remainder devised to the heirs of her body. Cannon v. Albright, 183 Mo. 239; Chew v. Kellar, 171 Mo. 215; Broóks v. Brooks, 187 Mo. 476; Jackson v. Littell, 213 Mo. 589; 1 Redfield, Wills (4 Ed.), side p. 438 and side page 447, n. 16, citing Ranfield v. Ranfield, 8 H. L. Cas. 225. (4) If it be true, as claimed by counsel, that the boys paid Agnes and Margaret the exact appraised value of two shares of the land, then it must be clear that there was no exchange, but a sale. The boys did not assign or attempt to assign their interest in the personal estate, but retained that,- as is apparent not only from the report of the appraisers, but from the final settlement of the executors, the appellants in this case. The appellants put in evidence the sworn report of the appraisers made at the time, whieh recited that the boys purchased the interests of these two girls, and that should be the end of the controversy.
   ROY, C.

This ease was begun in the circuit court of Adair county on February 23, 1906, and was taken by change of venue to Randolph county, at Huntsville, where the trial occurred.

The petition states, in substance, that William Welch died in June, 1889, the owner of 580 acres of land described in the petition, leaving a will by which he devised to his children Thomas E. Welch, Walter F. Welch and Margaret O. Welch, and to his granddaughter Margaret E. Moran, each one-fifth of his real estate, and to his daughter Agnes Farley and the heirs of her body one-fifth part of said real estate. That Agnes Farley died August 17, 1905, leaving these plaintiffs her only children and issue, and that plaintiffs are jointly owners of an undivided fifth of said land; and that defendants claim said land adversely to plaintiffs, but whatever interest they have is derived solely through said will. The prayer is that the court ascertain and determine the estate and interest of plaintiffs and defendants, and adjudge the same accordingly.

On June 29, 1906, defendants Walter F. and Thomas E. Welch filed an amended answer, admitting that plaintiffs are the children of Agnes Farley, who died August 17, 1905, and that William Welch died in June, 1889, owner of said land, and leaving a will, and alleging that by said will he provided that his estate, subject to his wife’s right, should go to his children and grandchild above named, the share of Agnes Farley to go to her and her bodily heirs, and the share of said Margaret E. Moran to go to Thomas E. Welch, trustee for Margaret E. Moran. That said Thomas E. and Walter F. Welch were appointed executors of said will. That the will provided for an appraisement of all the property of the estate by three freeholders of the county, and that after such appraisement thefour children of said William Welch might, by agreement and election among themselves, take any part or all of said real estate, and account for and turn over to Thomas E. Welch, as trustee for Margaret E. Moran, a sum equal to one-fifth of said real estate; said trustee to retain her interest in the personal estate; or that said Walter P. and Thomas E. Welch, by agreement and election among the said four children, might take any part or all of said real estate at its appraised value; and if they took all of said land they were to turn over to said Agnes Parley for herself and the heirs of her body and to said Margaret C. Welch and said trustee each a sum equal to a fifth of said real estate, and the personal estate to remain subject to distribution in five parts under said will. That said Margaret C. Welch and Margaret E. Moran have no interest in said land. That in pursuance of the will, the four children selected and agreed to the appointment by the probate court of Adair county of three freeholders as appraisers of said property, and that said appraisers appraised said land at $3609.60, exclusive of the widow’s interest. And thereupon said children agreed and elected that said Walter P. and Thomas E. Welch would take all of said land at its appraised value, and turn over to said Margaret Welch and Agnes Parley each an amount in personal property of said estate equal to one-fifth in value of said property, and that said trustee would charge himself with an equal amount, and that there was turned over and delivered to said Margaret C. Welch and to said Agnes Parley, for herself and the heirs of her body, personal estate and money equal to one-fifth of said estate, and that said trustee charged himself with one-fifth of said amount. That thereupon said appraisers made out their report in writing showing that all said lands were taken by said Walter P. and Thomas E. Welch jointly at their appraised value, and that said Walter P. and Thomas E. Welch thereupon entered into possession of said land and have ever since enjoyed the same as owners in fee with full knowledge and consent of said Agnes Parley and Margaret C. Welch.' That the said Agnes Farley and the heirs of her body have had and enjoyed said one-fifth part of said personal property; that the said Margaret Welch has held her one-fifth in said estate; that the said trustee has had the fifth interest of his said beneficiary; and that by virtue of said election, said Walter F. and Thomas E. Welch are now and have been since the death of William Welch, the owners of said land, in fee simple, subject to the dower of said widow of William Welch. That said widow died April 1, 1902, and that ever since said settlement and election said Walter F. and Thomas E. have been in the open, notorious, continuous and adverse possession of said land. That ever since said settlement and election until her death in 1905 said Agnes Farley held and used as her equitable separate estate the one-fifth interest of said estate, and that said interest in said personalty is practically intact, and that during said fifteen years said Agnes Farley made no complaint about the kind of property taken by her for herself and the heirs of her body under the terms of the election, but, on the contrary, was always fully satisfied therewith. And that said Walter F. and Thomas E. Welch have acted upon • the faith of said settlement and election and entered upon said land and cleared and improved it, and expended large sums in so doing. That said Walter F. and Thomas E. Welch have had no part of the personalty of said estate, but that the same has gone to said Agnes and others, as.above stated. The answer then pleads that plaintiffs are estopped to deny that said four children of William Welch made said election, and are estopped to claim any interest in said land, and that plaintiffs are barred by laches of said Agnes from claiming that said election was not made, and the answer prays that they be alleged the owners of the land, and that the other parties be adjudged not to have any interest in said land.

The reply denied the allegations of the answer, except snch as are admitted, and alleges that Agnes Farley conveyed her life estate to said defendants, and that said defendants converted to their own.use the entire personal- estate of their said father, and that said appraisement was fraudulently procured to be made by said defendants at a fouth of-its real value for the purpose of procuring the interest of Margaret E. Moran at a grossly inadequate price.

The separate answer of Margaret C. Welch and Margaret E. Moran were practical admissions of the allegations in the separate answer of Walter F. and Thomas E. Welch.

At the June term, 1906, Judge Waller, the regular judge of the circuit, announced that he was unable to hold the remainder of the term and had been unable to get a judge of another circuit to hold it, and at an election of the bar, Hon., Willard P. Cave, a member of the bar, was elected as special judge for the remainder of the term. The cause was tried before- Judge Cave on June 29, 1906, without a jury.

The plaintiffs introduced in evidence .the will-of William Welch, by which he left his estate, subject to his wife’s rights as follows: Oné-fifth to each "of his children Walter F., Thomas E. and Margaret C.; one-fifth to Thomas E. in trust for the grand-child, Margaret E. Moran, said share to be kept loaned out until she is twenty-one years of age, paying her nothing but what is necessary for her education and support, and one-fifth to Agnes Farley and her bodily heirs. The remainder of the will is as follows:

“5th: — I hereby nominate and.appoint my two sons, Walter F. Welch and Thomas E. Welch, executors of this my last will, and request them to settle up all of my estate, if possible, without any litigation in court.
“6th: — After a fair and honest appraisement of the personal property by capable and disinterested householders of said county it is my will that any one or all of my said children may take of my said personal property, trust deeds, notes, choses in action, etc., and • divide the same at the appraisement value if they see fit, of course none to take in excess of its said fifth; and, of my real estate, I will that it also be appraised by three good and capable freeholders, who shall all be sworn to make an equitable, just and fair appraisement of all my said estate, excepting what my beloved widow takes under the law as aforesaid, and after it is so appraised, I will that- my said four children, or my said two sons, may take said land at the said appraisement in amount, in no case, with said personal property to exceed said fifth part, and that when said appraisement of the real estate is so made and the said lands taken at appraisement in whole or part, that said appraisers make report to the probate court of Adair county, Missouri, under oath, and let said court file said report with the land thus taken mapped off, and it shall be taken as so much land under this will: but be it understood definitely that no one shall take to exceed a fifth part of my estate.”

The plaintiffs then put in evidence the original answer of the defendants, which, after setting out the provisions of the will, alleged that the real estate was appraised by three freeholders of the county appointed by the probate court at the total sum of $4170, and that the widow’s interest therein was appraised by them at $560.35, leaving after deducting the widow’s interest, $3609.65, and that said appraisers, on December 6, 1890, filed their report of said appraisement in the probate court, and said report showed that said Walter F; and Thomas E. Welch elected to take all of said land at the appraisement, but erroneously reported in said report that said Walter F. and Thomas E. had purchased the interest of Agnes Farley in said land. when no such purchase had been made, but that one-fifth of the value of the whole estate had been turned over to her and accepted by her.

The defendant put in evidence an order of the probate court of Adair county dated August 13, 1890, appointing three appraisers as follows: “It is ordered by the court that Terrence Flinn, James Gillispie and James Rowan be appointed appraisers or commissioners to appraise the real estate belonging to the deceased as provided by the last will of said deceased and to make their report under oath to this court at the November regular term, 1890. With the land thus taken mapped off.”

Also an order of the probate court made November 10, 1890, as follows: “It is ordered by the court that the time of Terrence Flynn, James Gillespie and James Rowan to make the report as appraisers in the aforesaid estate be extended, and this cause is therefore continued to December 8, 1890, at which time said appraisers are required to make their report to this court.”

Also the report of said appraisers, filed December 2, 1890, as follows:

“The undersigned having been appointed by this court commissioners under the terms of the will of William Welch, deceased, to make an equitable, just and fair appraisement of all the real estate belonging to deceased, respectfully report that on the 7th day of November, 1890, we were duly sworn that we were capable freeholders, residents of Adair county, Missouri, and that we should make an equitable, just and fair appraisement of said real estate, as will be shown by the affidavit hereto attached, and we did on said 7th day of November, 1890, view said real estate and appraise the same as follows: [here follows a description of the land with the valuation of the several tracts.] Making a total valuation of $4170.
“With the consent of the widow, Bridget Welch, we have assigned her as homestead and. dower the following: N. E. N. W. and N. W. N. W. and S. E. N. W. and the N. y S. W. N. W. Section One, Twp. 63, Range fourteen (14), appraised at fifteen hundred dollars.
“We find that the value of the fife estate of said widow in the lands assigned her as homestead and dower is five hundred and sixty dollars and thirty-five cents, leaving the total value of said lands exclusive • of the value of the homestead and dower of the widow three thousand six hundred and nine dollars and sixty-five cents, making the value of the share of each of the five legatees seven hundred and twenty-one dollars and ninety-three cents. And Thomas E. Welch and Walter F. Welch having purchased the interest of Margaret Welch and Agnes Farley, two of said legatees in said land, and they agreeing to take all of said lands at said valuation.
“We ascertained that there is in money and personal property and notes, all good, belonging to said estate the sum of about thirty-seven hundred dollars.
“And Thomas E. Welch as trustee for said Margaret Ellen Moran with the consent of Walter F. Welch selects for said Margaret Ellen Moran seven hundred and twenty-one dollars and ninety-three cents in money in lieu of her interest in the land which sum is to be taken out of the shares of said Walter F. and Thos. E. Welch in the personal estate.
“The said Walter F. and Thos. E. Welch agree to take jointly the following lands subject to the fife estate of their mother, to-wit:
N. N. W. qr. Sec. 1 Twp. 63 R. 14.
S. E. N. W. qr. Sec. 1 Twp. 63 R. 14.
N. 3^ S. W. N. W. Sec. 1 Twp. 63 R. 14.
“Then take all the other lands jointly in fee, all of which is shown by the plat hereto attached.”

Also a warranty deed from Margaret C. Welch and Agnes Farley to Walter F. and Thomas E. Welch, dated December —, 1890, for the expressed consideration of $1443.86 and acknowledged January 7, 1891, conveying all the land described in the petition. Said deed contained the^ following language: “intending hereby to convey our interest as heirs and under the will of William Welch, deceased, and the warranties herein apply only to such interest.”

Also a deed from Margaret E. Moran to Thomas E. Welch for her interest in said land for the expressed consideration of $1500, dated August 7, 1892.

The plaintiff in rebuttal put in evidence the first annual settlement of Walter F. and Thomas E. Welch, executors of said estate, made August 13, 1890, showing a balance due the estate of $3663.61, also the final settlement made September 11, 1893, showing a balance due the estate-of $2959.32.

The evidence was all documentary. No witness was sworn. No instructions were asked or given. The court took the case under advisement until August 23, 1906, when it rendered its finding and judgment for the plaintiffs, and the defendants perfected their appeal, with leave to file their bill of exceptions during the next term of court.

There is a controversy as to whether the bill of exceptions was properly signed by the right judge. The appellant’s abstract has the following:

“And afterwards defendants presented said bill of exceptions to Honorable Willard P. • Cave, Special Judge, who tried said cause, and to said court, which said bill of exceptions was, on the 12th day of January, 1907, approved, allowed, signed and sealed by said Honorable Willard P. Cave. And said bill of exceptions was, on the said 12th day of January, 1907, and during the January term of said court, by an order of said court, duly entered of record, allowed and ordered filed, and was filed and made a part of record in said cause.”

And their reply brief contains the following:

“Respondents attack appellants’ bill of exceptions, filed in this cause, and contend that there is no bill of exceptions before this court. This contention ought to be ruled against respondents, because appellants’ abstract of the record, at page 30-b, under the caption ‘Bill of Exceptions Filed’, shows that Honorable Willard P. Cave, Special Judge, who tried the cause and who signed the bill of exceptions, was presiding over the court at the time the order making the bill of Exceptions a part of the record, was entered of record.”

The respondents do not contend that Judge Cave did not hold the January term, but insist that the abstract does not recite such fact.

The bill was signed as follows:

“Willard P. Cave,
“Special Judge, Randolph County Circuit Court.” And indorsed:
“O. K. Approved January 12, 1907,
“Will A. Rothwell, of Counsel for Plaintiff.” .

(1) We are not disposed to exclude the bill of exceptions unless it clearly appears that it is our duty to do so. Appellants’ abstract is capable of being construed to mean that Judge Cave did preside over the January term. Appellants’ counsel assert that he did so preside. Respondent does not deny that he acted as such judge, and only insists that the abstract does not show that he was elected to preside at the January term.

From what is before us, we have no doubt that Judge Cave held the January term of the court as special judge and properly signed the bill in accordance with section 2032 of the statutes, which provides that such bill shall be signed by the succeeding or acting judge of the court. In Ranney v. Packing Co., 132 Mo. App. 324, it was held that where a special judge was elected to hold a term of court, the regular judge while the special judge is sitting has no authority to sign a bill of exceptions in a ease tried before him at a preceeding term, but that it should be signed by the special judge. Much more does that rule apply here, where the special judge at the time of signing the bill is the same one who tried the case.

(2) Under the terms of the will the property both real and personal was to be appraised in the manner therein provided; and, upon the completion of the appraisement, the sons Walter F. and Thomas E. were given the right, upon delivery to the other beneficiaries under the will of their respective fifths in value of the estate, to take the land as their own.

Mrs. Farley was not given power by the will to convey them anything. Of course she could in her own right convey them her fife estate, but, search the will as'we may, no power to convey the remainder is vested in Mrs. Farley. The two sons had all the power necessary under the will to take the title to the real estate to themselves. All that was necessary was, to have the property, real and personal, appraised as provided in the will, then upon the full payment to the others of their respective shares in the estate, to take the land as their own. Did they exercise that power? We find that they did not. The personalty was never appraised, but, conceding that it was reduced to cash and that no appraisement was necessary of the personalty, yet there is nothing in the record from which such payment to Agnes Farley of the fifth of the estate can be inferred. The deed from her and her sister to the two brothers recites that it was made in consideration of $1443.86, just two-fifths of the value of the real estate as appraised. Their final 'settlement made in September, 1893, shows that they still had the personal assets in their hands, and there is no evidence in the case that they ever paid of their own money or of the assets of the estate anything to Agnes Farley except the one-fifth of the appraised value of the real estate. This is the construction of the will most favorable to the defendants.

The judgment was for the right parties and is affirmed.

Bond, C., concurs.

PER CURIAM.

The foregoing report of the commissioners is hereby adopted as the opinion of the court.


author: BOND, C. PER CURIAM.

text:
    MARY A. JACKSON et al. v. RICHARD PHALEN et al., Appellants.
    Division Two,
    November 14, 1911.
    1. APPEAL: Equitable Proceeding: Reviewing Evidence. Considering this case in the nature of an equitable proceeding under the reply praying affirmative equitable relief, it becomes the duty of the Supreme Court to review the evidence.

      2. PRESUMPTIONS: Second Marriage. The evidence shows that the same person had been married twice, each marriage according to legal formalities, and an interval of ten years intervening be- • tween the first and second marriage. Nothing else appearing, the law presumes there were no legal obstacles to the second marriage and that it made the parties husband and wife. In support of this presumption, the law infers, in the absence of contrary evidence, that the first marriage was dissolved by death or divorce. This is a favored presumption of the law, and can be overcome only by clear and cogent evidence. .
    3. -: Immoral Relations: Later Marriage. The presumption of immoral relations does not arise where those relations have been rectified by a later marriage.
    4. EVIDENCE: Burden of Proof: Suit to Quiet Title. The burden of establishing no divorce and that a woman’s first husband was alive at the date of her second marriage, rests upon the defendants in this suit to quiet title wherein they deny the legal validity of this second marriage, the validity of which is essential to plaintiff’s title. That burden is not discharged by such testimony as the defendants introduced in this suit.

      5. PRESUMPTIONS: Illegitimacy: Evidence to Overcome. The law presumes legitimacy, not bastardy, with the same force with which it infers that a marriage when once shown to have taken place with legal formality can be shown to be invalid only by strong and persuasive evidence, leaving no room for reasonable doubt in the mind of the chancellor. The evidence of defendants in this case is reviewed and held insufficient to overcome this presumption. .
    Appeal from Iron Circuit Court. — Hon. Joseph J. Williams, Judge.
    Affirmed.

      George Safford for appellants.
    (1) When, in an action at law, equitable questions are interposed, the entire case is thereby converted into a suit in equity, and will be so regarded, both in the trial court and on appeal. Durfee v. Moran, 57 Mo. 375; Saving Inst. v. Collonious, 63 Mo. 295; Allen v. Logan, 96 Mo. 597; McCullum v. Boughton, 132 Mo. 621; Swon v. Stevens, 143 Mo. 392; Lewis v. Rhodes, 150 Mo. 501; Ridgeway v. Herbert, 150 Mo. 612. (2) While it is true that in equity cases where the evidence consists wholly or almost entirely of parol evidence, the Supreme Court will defer somewhat to the Audi Tig of the chancellor, no such rule obtains in cases in which the evidence consists of records, writings, or depositions. Allen v. Logan, 96 Mo. 598; Lovitt v. Russell, 138 Mo. 481; Swon v. Stevens, 143 Mo. 396, (3) The relation arising from a lawful marriage between competent parties is presumed to continue until substantial evidence is offered tending to show that such relation has been terminated, either by the actual or presumed death of one of the contracting parties or by divorce. 5 Cyc.' 700; State v. Melton, 120 N. C. 591; Whalen v. State,' 12 O. Cir. Ct. 584; Clark v. Cassidy, 62 Ga. 408;' Eriskine v. Davis, 25 111. 251; Ellis v. Ellis, 58 íowa, 720; Cruize v. Billmire, 69 Iowa, 397. (4) An honest and reasonable belief on the part of the contracting parties that Brainard was then dead would relieve the transaction of its criminal aspect,' bnt leave the second marriage void. State v. Stank, 9 Ohio Dec. 8; Reg. v. Tolson, 23 Q. B. D. 168; Reg. v. Moore, 13 Cox C. C. 544; Reg. v. Horton, 11 Cox C. C. 670; Reg. v. Turner, 9 Cox C. C. 145; People v. Mayer, 8 N. Y. St. 256; Reynolds v. United States, 98 U. S. 145. (5) Where the relation between a man and woman cohabiting is shown in the first instance to have been meretricious, the presumption arises that their relation has continued to be of such character. 22 Am. and Eng. Ency. Law, 1240; Turton, 3 Hag. Ece. 350; Carotti v. State, 42 Miss. 334; Cargile v. Wood, 63 Mo. 501; Smith v. Smith, 4 Paige, 432; Imboden v. Trust Co., Ill Mo. App. 235.
    2V, A. Mozley and Ralph Wammack for respondents.
    (1) Where a legal marriage is shown and that subsequently one of the parties to the marriage intermarried with another, the presumption of law is, that the former partner is dead or that the former marriage was dissolved by divorce, and the burden is on the party asserting the illegality of the subsequent marriage to show that the party to the former marriage was alive at the date of the subsequent marriage, and if alive that there was no divorce, and this, even though it requires the proof of a negative. In such case the presumption of innocence is stronger than the presumption that a legal marriage relation once entered into is presumed to continue. There is a very strong presumption in favor of the legality of a marriage regularly solemnized. Rather than hold a second marriage invalid, and that the parties have committed a crime or been guilty of immorality, the courts have often indulged in the presumption of death in less than seven years, or, where the absent party was shown to be alive, have allowed a presumption that the absent party has procured a divorce. A more correct statement, perhaps, would be that the burden is cast upon the party asserting guilt or immorality to prove the negative— that the first marriage had not ended before the second marriage. Maier v. Brock, 222 Mo. 74; Johnson v. Railroad, 203 Mo. 381; Klein v. Laudman, 29 Mo. 259; Hunter v. Hunter, 111 Cal. 261; Schuchart v. Schuchart, 61 Kan. 597; Boulden v. Melntire, 119 Ind. 574; Johnson v. Johnson, 114 111. 617. (2) When a marriage has been regularly solemnized, the contract of marriage, the capacity of the parties, and in fact everything necessary to the validity of the marriage, in the absence of proof to the contrary will be presumed to be valid until the contrary is shown. Megginson v. Megginson, 14 L. R. A. 540; Cartwright v. McGowan, 121 111. 388; Thomas v. Thomas, 124 Pa. St. 646; Ward v. Dulaney, 23 Miss. 410. (3) To stigmatize a mother and to deprive a child of its birthright are matters of the' gravest importance and should not be done, except upon clear and unequivocal testimony of such force as to leave no reasonable doubt. Kraus v. Kraus, 98 Mo. App. 427.' (4) The law presumes legitimacy and not illegitimacy. After a lapse of many years and when the parties are dead, legitimacy will be presumed on very slight proof. Johnson v. Johnson 30 Mo. 81.
   BOND, C.

This action is to quiet title to certain lands which belonged to Joseph C. Howell at the date of his death. The plaintiffs are the subvendees of Sobrina Howell, who elected as the widow of Joseph C. Howell to take one-half of his estate in lieu of dower. At the time of the death of Joseph C. Howell he also left surviving him a little boy, Howard Russell Howell,, whom he and said Sobrina Howell had reared and •treated as their child, and asserted that he was born about two years after a marriage ceremony between them. After the death of Joseph C. Howell, this child died leaving no issue, and the said Sobrina Howell claimed the balance of said lands as the heir of said boy. She sold the lands to plaintiff. She also administered on the private estate of said Joseph C. Howell, and received from one of the defendants, Thomas Howell, as administrator of the estate of a partnership between himself and said Joseph C. Howell, the balance due on final settlement of the partnership estate.

The defendants are Thomas Howell, the brother and partner of Joseph C. Howell, deceased, and his children, and one Phalen, to whom said Thomas Howell gave a deed to certain of the lands; whereupon plaintiffs filed this suit against said Phalen as defendant. The said Thomas Howell and his children were subsequently made co-defendants.

The answer of the defendants avers that Sobrina Howell was not the legal wife of Joseph C. Howell, and that the boy, Howard Russell Howell, was neither their offspring nor adopted by them, and that plaintiffs acquired no title as grantees of Sobrina Ho well; that defendants are the next of kin and sole heirs of Joseph C. Howell, whose title to said lands was east upon them by descent.

A reply was filed containing a general denial and alleged also matters of estoppel, and prayed affirmative equitable relief. A demurrer to the reply being overruled, the cause was submitted to the court without a jury.

On the tóal the following facts were undisputed: A certificate of the marriage of ¥m. Brainard and Sobrina Russell on the 29th of November, 1865, in Benton county, Missouri; a certificate of the marriage of Joseph C. Howell and Sobrina Brainard on the 26th' of October, 1875, at Kansas City, Missouri; a certificate of the election in writing on the 29th of March, 1888, of Sobrina Howell as the widow of Joseph C. Howell, deceased, and mother of his son, Howard Russell Howell, then living, to take a child’s part of the lands of said Joseph C. Howell; her application on the 5th of January, 1887, for letters of administration on the private estate of said Joseph C. Howell, stating, under oath, that she was his widow, and, together with said Howard Russell Howell, was his heir; that letters of administration as prayed were granted to said Sobrina Howell; that two allowances, $200 and $300, respectively, were made to her as widow by the probate court on February 3, 1887, and on the 26th of April, 1887; that said Sobrina Howell as guardian of said Howard Russell Howell suggested his death on the 28th of January, 1889, and was ordered to make distribution of his estate; that defendant Thomas Howell, surviving partner of J. C. Howell, as administrator of the partnership estate paid over. certain of said assets to Sobrina Howell, as shown in his final settlement on the 25th of November, 1889; that deeds covering all the lands claimed by Sobrina Howell were made, first, of the hah belonging to her as widow; and, second, of the remaining half coming to her as the mother of Howard Russell Howell upon his death; that by subsequent deeds all of said lands were con-, veyed to plaintiffs; that Howard Russell Howell died without issue before Sobrina Howell, and that she subsequently died; that J. C. Howell was the common source of the titles claimed by the respective parties to this suit; that the defendants are Thothas Howell, the brother, and other collateral kindred of Joseph C. Howell, and the grantees of defendant Thomas Howell; that unless the widow and child, recognized as such by Joseph C. Howell at his death, bore relations to him, then he died without direct descendants. As to this question, the plaintiffs adduced other- evidence than that heretofore stated, which tended to prove that after Joseph C. Howell moved to Cape Girardeau and Stoddard counties and up to his death in December, 1886, he at all times and in every manner acknowledged Sobrina Howell to be his wife, and the boy, Howard Russell Howell, to be his child by her as his wife; that he showed great affection for said child, and, when dying, besought his brother, Thomas Howell, who was his partner in the stave business, to do the right thing by his wife and child in “straightening up the business,” which defendant Thomas Howell promised to do; that the witness who gave this testimony further stated defendant Thomas Howell called on her and sought to prevent her from so testifying; that on the 26th of June, 1891, in a suit of Thomas Howell v. H. H. Bedford, it was alleged in the petition “that the said J. C. Howell departed this life December, 1886, and left as. his only heirs at law his widow, the said Sobrina Howell, and his only child, Howard Russell Howell .... “That on dr about the 1st day of January, 1889, Howard Russell Howell, the said minor child of J. C. Howell, deceased, departed this life, leaving as his only heir at law his mother, the said Sobrina Howell.” That during the five or six years the said Joseph C. Howell lived in southeast Missouri, he caused Sobrina Howell to join as his wife in many conveyances of real estate made by him, and in every way recognized her as his' wife.

Defendants introduced evidence tending to show that prior to the marriage ceremony between Joseph C. Howell and Sobrina Brainard they had lived together as man and wife in Kansas City, Missouri, that Brainard, the former husband of Sobrina, was aware of this, and after some arrangement resulting in a payment of money to him, left Kansas City in 1871; that about four or five years after his departure, the marriage ceremony between Joseph C. Howell and Sobrina Brainard took place; that about two years after that ceremony the child, Howard Russell Howell appeared and was seen when apparently about a week old by acquaintances of the parties; that some of them asked Mrs. Sobrina Howell about the child, and she merely laughed, and to one person she said that she had found it in the barnyard; that certain other persons living in • Kansas City asked Mr. Howell about the child; that generally he made no reply, but to one of them he said that vit was not his child, that he intended to adopt it; that the boy had red hair and a freckled face, while Joseph C. Howell and Sobrina Howell had dark colorings; that when Joseph C. Howell was- asked about this, he said “it raced back several generations;” that a man named William Brainard stopped three times in 1890 and 1891 at the corral of a horse dealer, having a different woman with him on each occasion, and in one óf them engaged in a fight upon the charge that he had another man’s wife with him. It was not shown that this William Brainard was the man who married Sobrina Russell in 1865.

Plaintiffs introduced evidence that Mrs. Sobrina Howell stated to a witness in Cape Girardeau in referring to the birth of this child, that she had nearly lost her life at the time; and evidence showing further that during the time Joseph C. Howell and Sobrina resided in Southeast Missouri they universally claimed this boy to be their child and showed the greatest care and affection for the boy.

OPINION.

I. Considering this case in the nature of an equitable proceeding under the reply praying affirmative equitable relief, it becomes our duty to review the evidence.

The two questions to be decided are, first, whether Sobrina Howell and the boy, Howard Russell Howell, were the wife and child, respectively, of Joseph C. Howell at the time of his death in December, 1886; second, if not, whether the defendants are precluded by their conduct or by laches from a recovery against the plaintiffs.

We will discuss these questions in the order named. The two marriages of Sobrina Howell — each according to the legal formalities — were celebrated, one in 1865 and the other in 1875, or at an interval of ten years. Nothing else appearing, the law in the interest of society presumes there were no legal obstacles to the second marriage, and that it made the parties thereto husband and wife. In support of this presumption, the law infers, in the absence of contrary evidence,. that the first marriage was dissolved by death -or divorce. [Maier v. Brock, 222 Mo. 74; Johnson v. Railroad, 203 Mo. 381-403; Klein v. Laudman, 29 Mo. 259; Revised Statutes 1909, sec. 341; Cartwright v. McGown, 121 Ill. 388; Thomas v. Thomas, 124 Pa. St. 646; Megginson v. Megginson, 14 L. R. A. 540; Orthwein v. Thomas, 127 Ill. 554; Kraus v. Kraus, 98 Mo. App. 427.]

This is a favored presumption of the law, and can only be overcome by clear and cogent evidence. [State v. Jenkins, 139 Mo. 535; State v. Cooper, 103 Mo. 266; State v. Hansbrough, 181 Mo. 348; State v. Gonce, 79 Mo. 600.]

The presumption of the continuance of immoral relations does not arise where they have been rectified by a later marriage. [Imboden v. Trust Co., 111 Mo. App. 235.]

Now, there was not a shadow of testimony in this case that William Brainard did not procure a divorce from the wife whose misconduct he knew of when he abandoned her, about four years before her subsequent marriage. He knew of her frailty in 1870 or 1871, and left her at that time, and, according to rumor, after a moneyed settlement. From that date until Howell’s death in 1886, the Brainard who married in 1865 was not identified as being alive nor having reappeared. The only allusion to a man of that name was the testimony of the horse dealer, that his book showed that a person of that name rented a place for his wagon and horses in his yards in 1890 or 1891 in company with, a different woman at each time. This witness did not pretend in any way to know that this person was the former husband of Sobrina Howell.

The burden of establishing no divorce and that the first husband was alive at the date of the subsequent marriage rested upon defendants. This was not discharged under the facts stated in the record. We, therefore, hold that the presumption of the legal validity ■ of the second marriage was not overthrown by the clear, cogent and satisfactory evidence required by law.

II. The next point is, whether or not Howard Russell Howell according to the preponderance of the evidence was the child of Joseph C. Howell and his wife, Sobrina. . For several years following their marriage those parties lived in Kansas City. Subsequently they moved to Cape Girardeau, Missouri. During their residence in Kansas City, and about eighteen months after the marriage ceremony, the boy, Howard Russell Howell, was seen as one of the family by persons who visited them. The apparent parents were questioned about the dissimilarity between their own hair and complexion and the light-haired, freckle-faced baby. These were generally dismissed with a laugh, though in one instance Mrs. Howell stated that she had found the child in the barnyard, and at another time her husband stated that it was not his but he intended to adopt it.

This testimony as to what happened in Kansas City rests upon the statements of witnesses about twenty-five years after the conversations were had.

On the other hand, the plaintiffs showed that Howell and his wife and the child lived in Cape Girardeau and Stoddard counties for five or six years before his death; that the acts and conduct of the hus-' band and wife never at any time during that period gave rise to any suspicion either by inference or implication that the child was not their own; that in one instance the mother spoke of her painful travail at the time of its birth. But no witness testified that any suspicion or thought was entertained in the community where they lived in southeast Missouri that this boy was not the child of its ostensible parents. Indeed, the defendant Thomas Howell, who was a partner in the stave business with his deceased brother, was so thoroughly impressed with the fact that his brother was the husband of Sobrina and the father of the child claimed by them, that as late as 1891, six years after his brother’s death, he affirmed such to be a fact in a petition filed by him. There was also evidence that he had attempted to suppress testimony of a witness who stated that he was told by his brother on his death-bed to take care of the interests of his wife and child im “straightening out their partnership,” and he promised so to do.

The defendants by their answer in this case have pleaded affirmatively “that Howard Russell Howell was not the child of Joseph O. Howell born in lawful wedlock.” They thus assume the burden cast upon them by law of proving illegitimacy. The law presumes legitimacy, not bastardy, with the same force with which it infers that a marriage when once shown to have taken place in accordance with the ceremony prescribed by law can only be shown to be invalid by strong and persuasive evidence, leaving no room for reasonable doubt in the mind of the chancellor. [Maier v. Brock, supra, 1. c. 100, and cases cited.]

Under these pleadings and the evidence in the record, the defendants have not sustained the burden of proof assumed in their amended answer of establishing by a preponderance of the evidence either the invalidity of the marriage in due form between Joseph C. Howell and Sobrina Brainard in 1875, or the illegitimacy of the child.

It results from this conclusion that the defendants have shown no title whatever to the real, estate of Joseph C. Howell, which descended at his death to his wife and child and by the conveyances of the surviving mother was subsequently vested in plaintiffs. This renders it unnecessary to discuss the question of estoppel. For these reasons the judgment herein is affirmed.

Roy, C., concurs.

PER CURIAM.

The foregoing opinion of Bond, C., is hereby adopted as the opinion of the court.


text:
    MARY A. JACKSON et al. v. RICHARD PHALEN et al., Appellants.
    Division Two,
    November 14, 1911.
    Appeal from Cape Girardeau Court of Common Pleas. — Hon. Joseph J. Williams, Judge.
    Affirmed.

      George Safford for appellants..

      N. A. Mosley and Ralph Wammack for respondents.
   BOND, C.

The issues and facts in this case are identical with those presented in Jackson v. Phalen, reported at page 142 of this Report, the only difference being that the land sued for in the two actions lies in different counties.

The conclusions reached in Jackson v. Phalen, supra, necessarily control the decision of this case. It is, therefore, ordered that the judgment herein be affirmed.

Roy, G., concurs.

PER CURIAM.

The foregoing opinion of Bond, C., is hereby adopted as the opinion of the court.