source: Caselaw Access Project

author: FOX, P. J. —

license: Public Domain

text:
    HARRIS et al. v. CHITWOOD, Appellant.
    Division Two,
    March 31, 1908.
    1. APPEAL: Superseded by Writ of Error. An appeal taken and pending in this court cannot be superseded by a writ of error. Until the appeal is dismissed, the writ of error cannot be considered.
    2. -: Filed in Supreme Court. Unless a certified copy of the judgment and order of appeal, or a transcript of the record, etc., is filed in the Supreme Court fifteen days before the first day of the next term, if the term begins more than sixty days after the appeal is taken, the judgment for plaintiff on his motion will be affirmed.
    Appeal from Howell Circuit Court. — Hon. W. N. Evans, Judge.
    Aeeibmed.

      Livingston & Burroughs and Theoph. L. Carns for appellant.

      Charles Kroff, Rechow & Pufahl and N. B. Wilkinson for respondents.
    The judgment should he affirmed for the reason that appellant failed to file a transcript or certified copy of the judgment in' the cause for more than a year after the rendition of said judgment and order granting an appeal. Deere & Co. v. Hucht & Furlong, 32 Mo. App". 158; Bohb v. Ins. Co., 32 Mo. App. 256; Bausman v. Kirtley, 47 Mo. 28; Bohb' v. Comfort, 47 Mo. 36; Koenig v. Rohlfing, 47 Mo. 163; Redway v. Chapman, 48 Mo. 218; Land & Invest. Co. v. Martin, 125 Mo. 114; Lucas v. Heuston, 168 Mo. 658.
   FOX, P. J. —

This cause is now pending in this court upon appeal from a judgment and decree in the circuit court of Howell county in favor of the respondents, defining and determining their interests in certain real estate described in the petition.

This suit was instituted on the 1st day of May, 1902. On the 2nd day of August, 1904, the decree and judgment of the circuit court was rendered. Motion for new trial was filed and by the court taken up and heard and on the 5th day of August, 1904, was by the court overruled. On the 9th day of August, 1904, and during the same term of court, defendant filed his affidavit for appeal, which was by the court found sufficient and an appeal was granted to the Supreme Court of the State of Missouri. Upon the granting of said appeal the defendant was given ninety days from the date of the order granting such appeal in which to file a bill of exceptions. The defendant was also allowed ten days in which to file an appeal bond, and on the 18th of August, 1904, and within the ten days, and in vacation of said court defendant filed his appeal bond'. "While the order granting the appeal by the trial court was made upon the 9th day of August, 1904, there was no transcript of the record and proceedings in this cause in the said circuit court, or a certified copy of the record entry of the judgment and decree of said court in this cause appealed from, together with the order granting the appeal, filed in this court until the 31st day of August, 1905. The record of the proceedings of the trial court in this cause as now on file at the instance of the appellant, seems to be here in response to a writ of error issued by the clerk of this court on the 18th day of May, 1905; however, our attention is nowhere directed to any record disclosing that the appeal in this court was ever dismissed. The record of the proceedings showing that an appeal was granted, until that appeal is disposed of, the writ of error, even though issued upon notice, should not be permitted to supersede the appeal, and the record before us will be treated as pending in this court upon appeal. Upon this state of the record respondents file their motion to affirm the judgment on the ground that the appellant failed to comply with rule 28 of this court, that is, that the appeal in this cause was granted by the trial court on the 9th day of August, 1904, and appellant failed to file in this court or with the clerk thereof a transcript of the record of proceedings in this cause in said circuit court, or a certified copy of the record entry of the judgment and decree of said court in this cause appealed from and the order granting the appeal, showing the term, month and year when said judgment and decree, together with the order granting the appeal was rendered, until the 31st day of August, 1905, more than one year after the order granting said appeal in said cause, when in fact such transcript or certified copy of the record entry should have been filed at least fifteen days before the October term, 1904, of this court.

Manifestly this appeal was returnable at the October term, 1904, and the transcript of the proceedings not having been filed until August 31st, 1905, was plainly in violation of rule 28 adopted by this court at its October sitting, 1901.

The respondents having accompanied their motion to affirm with a certified copy of the judgment and decree and the order granting the appeal, in accordance with the uniform rulings of this court, the motion to affirm the judgment should be sustained, and it is ordered that the judgment in this cause be and it is hereby affirmed.

All concur. .


author: BURGESS, J. —

text:
    JOEL H. REIGER, Appellant, v. JOHN R. MULLINS et al.
    Division Two,
    March 31, 1908.
    1. SHERIFF’S RETURN: Conclusive. The sheriffs return showing service on a defendant is conclusive and authorizes a judgment against him, whether false or not’, or however false may he the allegation of the petition.

      2. -: -: Ejectment: Judgment for Damages Against Defendant Out of Possession. Plaintiff sues in equity, alleging that defendant, though in possession of land and knowing that plaintiff made no claim to it, fraudulently brought ejectment against plaintiff and took judgment for possession and $350 damages, 'and is about to sell other land actually belonging to plaintiff to satisfy said judgment, and further alleging that plaintiff was never served with process in said ejectment and that the sheriff’s return showing service was false, etc. Held, that the sheriff’s return was conclusive on plaintiff, and his petition did not state a 'cause of action. [Following Smoot v. Judd, 184 Mo. 508.]
    Appeal from Jackson Circuit Court. — How. J. H. Slover, Judge.
    Affirmed.

      Geo. H. English, Jr., for appellant.
    (1) The petition alleges, and the affidavits attached thereto show, conclusively, fraud in the inception of the judgment. The petition alleges that the case of Mullins v. Reiger was brought for the fraudulent purpose of extorting money from the appellant herein, and that the apparent jurisdiction of the court was based upon the fraudulent acts of the third parties of which the plaintiff in that suit was advised. No rights of an innocent third party have intervened. The judgment is apparently valid on its face and is capable of misuse against the appellant. The court below had complete jurisdiction of the parties, and should have overruled the objection to the introduction of any testimony. The objection was made and sustained upon the grounds that the plaintiff below had an adequate remedy at law by suit upon the officer’s bond. The jurisdiction of a court of equity to set aside a judgment for fraud is not ousted because a remedy at law «exists. Baldwin v. Dalton, 168 Mo. 420; Baldwin v. Davidson, 139 Mo. 118. But between the parties the court of equity has always jurisdiction to set aside a judgment obtained by collusion or fraud. Harris v. Sanders, 48 Mo. 421. And where the facts which render a judgment fraudulent and void are not shown upon the record and rest in pais, injunction is the proper remedy to restrain an execution under such judgment. Gazzolo v. McCann, 63 Mo. App. 414. And where the defendant’s judgment would apparently be a valid lien upon the plaintiff’s land and is for that reason calculated to throw some doubt upon his title, or is capable of future misuse, the jurisdiction of a court of equity to grant relief from the same is not merely remedial but is also exercised to prevent injustice. Rogers v. Bank, 82 Mo. App. 377. (2) At the time this suit was begun, on September 30, 1904, the law of this State was that equity would entertain a suit to enjoin the enforcement of a judgment, based upon a false return. Smoot v. Judd, 161 Mo. 673. While the suit was pending and before trial, viz.: on November 29, 1904, this court rendered an opinion on the second appeal of Smoot v. Judd, and held by a divided court that the action would not lie in such a case. Smoot v. Judd, 184 Mo. 508. When the present case came on for trial on January 15, 1905, the trial court felt constrained to follow the latest deliverance of this court and it is manifest that if Smoot v. Judd is to be followed as decisive of the case at bar, the trial court was right, for this case falls within the principle there decided, except as distinguished in point 1, supra, upon the question of fraud. The point is presented, therefore, whether or not Smoot v. Judd shall be overruled. Appellant does not concede that Smoot v. Judd is the controlling- decision, but believes the distinction heretofore made is a valid one; but, since the court below acted upon the belief that such decision did bind him, the question of overruling that decision is presented as if it were the decisive question. We are firmly convinced that the correct rule is found in the minority opinion, and that it should be so declared.

      Johnson & Lucas for respondents.
    (1) The sheriff’s return is conclusive, and respondent is not alleged to have had any knowledge of, or any part in, procuring the return of the sheriff, complained of. McClanahan v. West, 100' Mo. 309; Smoot v. Judd, 184 Mo. 508. (2) Appellant has an adequate remedy at law. Hallowell v. Page, 24 Mo. 590; Benton Co. v. Morgan, 163 Mo. 661; Feurt v. Castor, 174 Mo. 297; Smoot v. Judd, 184 Mo. 508. (3) Appellant is presumed, in the absence of an allegation to the contrary, to have had knowledge of all the acts done in his name. He does not .deny knowledge that the deed was made to him, and that suit was filed against him, but says that “all proceedings after the filing of the petition were,” etc., and that he “at no time had any notice of said proceedings.” (4) Appellant did not offer to do equity, by offering to relinquish the title alleged to have been conveyed to him, at O’Neill’s instance.
   BURGESS, J. —

The petition in this case alleges,, in substance, that the defendant Mullins, though in possession of certain lands and with knowledge that plaintiff made no claim to it, fraudulently brought ejectment against plaintiff and took judgment for possession and three hundred and fifty dollars damages, and is about to sell other land actually belonging to plaintiff to satisfy the judgment; that plaintiff was never served with process in the' original suit and that the sheriff’s return of service was false. The petition further alleges: “That all the proceedings in said case, after the filing of the petition, were .and are a fraud upon your Honor’s court and a fraud upon plaintiff, and contrary to good conscience ■ and good faith; that at all times mentioned in the petition, the defendant herein, John R. Mullins, was, by his tenant, one Howard Davidson, in possession of the property described in said petition, and that said petition was not filed in good faith, but was devised as a means of getting money from this plaintiff and that this plaintiff at no time had any notice of said proceedings, and at no time had or claimed any right or title in the property, and at no time was in possession of the same, and that all of these facts were well known to defendant John R. Mullins, or might have been discovered by him by inquiry from this plaintiff; and that plaintiff is without remedy at law, but can only obtain relief by a court of equity.”

The petition concludes with a prayer for an injunction against Mullins and the defendant .sheriff to restrain the sale, for the vacation of the judgment, and for equitable relief.

Attached to the petition were affidavits tending to sustain the allegations therein contained.

The defendant Mullins filed answer, denying all allegations in the petition.

When the case came on for trial, the defendant objected to the introduction of any testimony under the petition upon the ground that the petition failed to .•state a cause of action in that the sheriff’s return was conclusive, and that plaintiff had an adequate remedy at law. The objection was sustained by the court, and plaintiff at the time duly excepted. In due time plaintiff filed motion for a new- trial, which was overruled, to which ruling he saved an exception, and appeals.

It is conceded by plaintiff that if the case of Smoot v. Judd, 184 Mo. 508, is to be followed as decisive of the case at bar, the trial court was right, because this case falls within the principle there decided, except as distinguished in his brief upon the question of fraud; but it is insisted that that decision is hot in line with the weight of authority, and should be reconsidered and overruled. That ease was well considered, and met with the approval of the entire Court In Banc, with one exception. We see no reason whatever for reconsidering or overruling it, and must, with due respect to counsel for plaintiff, decline to so do.

The judgment should be affirmed. It is so ordered.

All concur.


text:
    WILLIAM SOMERVILLE, and HATTIE, P. SOMERVILLE, Plaintiffs in Error, v. CLEMENTINE HELLMAN, HERMAN A. HAEUSSLER, and ROBERT F. BLAIR.
    Division Two,
    March 31, 1908.
    1. EQUITY: Conversion: Action at Law. Where the petition, charges that one Heilman in his lifetime converted to his use the stock of a corporation which had been pledged to him in his lifetime to secure him, as the beneficiary of a deed of trust, harmless against a prior deed of trust which was after-wards adjudgea invalid, a suit in equity, brought against said - Heilman’s widow and the trustee of the second deed of trust made for Heilman’s benefit, cannot be maintained, unless there is an allegation that Heilman’s estate or that of the trustee is insolvent or unless some other facts are alleged which would indicate that the relief sought could not be obtained by am action at law.

      2. -: -: -: Delay. And in such case it is significant that no effort was made to obtain relief for four years, that an action at law coula have been instituted against Hellman in his lifetime and was not, and that final settlement of his estate is alleged to have been made. Such conduct does not readily arouse a court of equity.
    3. DEED OF TRUST: Redemption: Suit on Notes. Where the deed of trust was foreclosed and the mortgagors were sued for the balance on the mortgage notes, that suit would have been an appropriate time to have contested with the purchasing mortgagee his right to recover the balance on the notes, if any fraud was perpetrated against the mortgagors by reason of the sale.
    4. -: -:■ -: Insufficient Pleading. A petition to redeem from sale under a deed of trust, based on loosely-worded verbal promises made to the mortgagors (who had sold their right of redemption) by the purchasing mortgagee through his agent and the trustee, to the effect that they would be perr mitted to redeem at any time they got ready to do so, does not state a cause of action.
    Error to St. Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge.
    Aeeikmed.

      Benj. J. Klene for plaintiffs in error.
    (1) Hattie P. Somerville was under tlie facts pleaded an original surety for her husband’s loan. Higgins v. Harvester Co., 181 Mo. 308; White v. Smith, 174 Mo. 186; Johnson v. Bank, 173 Mo. 171; Propes v. Propes, 171 Mo. 418; McCullum v. Broughton, 132 Mo. 601; Barrett v. Davis, 104 Mo. 549'; Barkhoefer v. Barkhoefer, 93 Mo. App. 373. (2) Blair’s assumption of the $18,500 deed of trust changed the relation of William Somerville from principal to surety for Blair who became the principal debtor. Or-rick v. Durham, 79 Mo. 174; Nelson v. Brown, 140 Mo. 580; Pratt v. Conway, 148 Mo. 291; Crone v. Stinde, 156 Mo. 262; Smith v. Davis, 90 Mo. App. 539; Laumeyer v. Hallock, 103 Mo. App. 116. (3) Whether the case be considered in the light of Mrs. Somerville’s original suretyship alone, or whether both, plaintiffs be considered as sureties under the Blair assumption agreement, in either case, plaintiffs are entitled to a decree declaring them of right entitled to be subrogated to the collaterals held by the defendant Heilman. Sheldon on Subrogation, sec. 24; Sugden on Subrogation, secs. 11, 51; Taylor v. Tarr, 84 Mo. 420; Orrick v. Durham, 79 Mo. 174; Ferguson v. Carson, 86 Mo.' 673; Woodbury v. Swan, 58 N. H. 383; Dwyer v. Rohan, 99-Mo. App. 113; Clark v. Bank, 57 Mo. App. 277; Bank v. Reed, 54 Mo*. App. 94; Fisher v. B. & L. Assn., 59 Mo. App. 430; Roberts v. Bartlett, 26 Mo. App.-611; MacKenna v. Trust Co., 3 L. R. A. (N. S.) 1071; Brown v. Kirk, 20 Mo. App. 525; Frank v. Fraylor, 16 L. R. A. (Ind.) 115. (4) (a) A judgment against the principal and surety on a bond does not extinguish the relation of principal and surety. Their rights inter se remain as before. Frank v. Fraylor, 16 L. R. A. (Ind.) 115; West v. Brison, 99 Mo. 684; Rice v. Morton, 19 Mo. 263; Dodd v. Winn, 27 Mo. 501; Freeman on Judgments, 226. (b) If a judgment against both does not alter the relation, why. should a judgment against the surety only affect or alter the relation of principal and surety in the slightest degree? Frank v. Fraylor, 16 L. R. A. (Ind.) 115. (5) From the time of Blair’s assumption of the deed of trust it was the duty of Heilman to recognize Blair as the principal debtor, and the Somervilles, one or both, as sureties in all his dealings in relation to their indebtedness. There was no choice to do otherwise. Smith v. Davis, 90 Mo. App. 539; Pratt v. Conway, 148 Mo. 296. But besides this there was a recognition of this relation by dealing with Blair for an extension. (6) If the case be looked at from the viewpoint of the vendor’s lien retained by Somerville’s grantee, Henderson, then and in that event the vendor’s lien is a lien superior to the deed of trust under the circumstances of the case. Phillips v. Schall, 21 Mo. App. 38; Bank v. Edwards, 81 Mo. App.. 162; Orrick v. Durham, 79 Mo. 171. (7) Heilman had no right to buy the stock even if authority to sell had been given. Byrne v. Carson, 70 Mo. App. 13; Moore v. Thompson, 10 Mo. App. 195. (8) The sale in bulk, with-the inadequate price, vitiated the sale to such an extent that the courts will interfere to set it aside. Miller v. Montgomery, 131 Mo. 595; Kelly v. Hurt, 61 Mo. 163. (9) Courts will not permit sales to stand where the price is so grossly inadequate as to shock the moral sense. Miller v. Montgomery, 131 Mo. 595; Stoffel v. Schroeder, 62 Mo. 117; Vail v. Jacobs, 62 Mo. 130; Bank v. Richardson, 130 Mo. 270. (10) Inadequate price and failure to give a customary notice will be sufficient for a court to relieve from an unconscionable sale. Hardware Co. v. Building Co., 132 Mo. 157; Sheridan v. Nation, 159 Mo. 27. (11) Inadequate price coupled with inadvertence or mistake will move the courts to relieve from an unconscionable sale. Kelly v. Hurt, 61 Mo. 163; Cole County v. Madden, 91 Mo. 585; McKee' v. Logan, 82 Mo. 528; Dunn v. McCoy, 150 Mo. 566. (12) A promise to permit redemption subsequent to a sale may be a circumstance properly put in evidence. Byrne v. Carson, 70 Mo. App'. 132; Parketon v. Scklem ter, 115 Mo. 55-. (13) (a) Friendly disinterestedness with inadequate consideration is enough to move a court to set aside an unconscionable sale. Swon v. Stevens, 113 Mo. 398. (b) Inadequate consideration with a lulling into security by promise to not sell without notice, which was not regarded, were sufficient to authorize a setting aside of an unconscionable sale. Clarkson v. C'reely, 35 Mo. 95,10 Mo. 111. (11) Plaintiffs’ paper tender and offer to redeem is sufficient to enable them to maintain this suit instead of making payment, defendants having refused to accept payment and surrender of securities to them as surety. Bank v. Reed, 54 Mo. App. 97; Whelan v. Reilly, 61 Mo. 565; Asman v. Smith, 156 Mo. 286; Ailey v. Burnett, 134 Mo. 313.

      Herman A. Haeussler and Harry H. Haeussler for defendants in error.
   FOX, P. J. —

This cause is before this court upon

a writ of error sued out by plaintiffs to have a judgment rendered by the circuit court of the city of St. Louis reviewed by this court'.

This cause in a certain sense may be treated as a companion case with Clementine Heilman v. William Somerville et al., decided at the present sitting of this court, and reported in 212 Mo. 415. In that case William and Hattie P. Somerville, who were defendants, filed a cross-bill, which is fully stated in the opinion, and therefore it is unnecessary to reproduce, in the statement of this cause, the cross-bill or the facts therein embraced. It is sufficient to say that the facts upon which the cause of action is predicated in this cause are substantially the same facts pleaded in the cross-bill in the case heretofore indicated of Heilman v. Somerville et al. In the present case William Somerville and wife are plaintiffs in error and Clementine Heilman and Herman A. Haeussler are defendants in error. While the style of this cause embraces the name of Robert F. Blair, it seems that he was not served with notice of the writ and hence is not in the case before this court. The relationship of Clementine Heilman to all the transactions alleged in the petition in this cause are also fully set out and disclosed in the statement and opinion in the case heretofore referred to of Heilman v. Somerville et al.; therefore, it is unnecessary to make further reference to the allegations upon that subject in the petition in the case at bar. Hermán A. Ilaeussler, the other defendant, was a mere agent or attorney for the deceased hnshand of Clementine Heilman, except in so far as it appears he was trustee in a deed of trust given on the Market street-property. His relation and connection with the transactions of which the plaintiffs in this cause complain, also fully appear in the statement and opinion in the other case decided at the present sitting" of this court, as heretofore suggested. As evidencing the correctness of the conclusion that this case as presented by plaintiffs, William Somerville and Hattie P. Somerville, is substantially the same' case as presented in their cross-bill in the other proceeding, we find that is the view that counsel take of it. In the brief of counsel in this proceeding there is this statement: “Plaintiffs also allege that in that suit these plaintiffs as defendants there interposed a cross-bill setting up' substantially this cause of action, and that the matters in that cross-bill were by the court held not proper matters for counter-claim in that suit, and that said cross-bill was not germane to the original bill in that suit.”

Doubtless the reference as made by the counsel in the quotation from the brief was directed to the cross-bill in the other case decided at this term of the court. .The relief sought and prayed for is substantially to '“award plaintiff the right to redeem the Market street property, after an accounting of rents and profits had been taken and also to compel the defendants, Clementine Heilman and Herman A. Haeussler, to account to plaintiff for the value of the Missouri Glass Company stock at the time of the pretended sale thereof, to-wit, November 20, 1900.”

To the petition filed in this cause, which we repeat embraced substantially the same allegations as were contained in the cross-bill as heretofore referred to, which was fully set out in the case suggested, the defendants, Clementine Heilman and Herman A. Haeussler, filed separate demurrers, which were as follows:

“Comes now defendant, Clementine Heilman, and, demurs to the petition herein filed by the plaintiffs for the reason that petition does not state facts sufficient to constitute a cause of action against the defendant.”

Defendant, Herman A. Haeussler, filed a demurrer in the following terms:

“Comes now defendant, Herman A. Haeussler, and demurs to the petition herein 'filed by the plaintiff for reasons:
“First. Petition does not state facts sufficient to constitute a cause of action against this defendant.
“Second. Because on the face of this petition this" defendant is not a necessary party to the complete determination of the action. ’ ’

The demurrers as above indicated were taken up by .the court and sustained. Plaintiff refusing to plead further, final judgment was rendered against them upon demurrers. In proper time the plaintiffs sued out their writ of error to this court and the record is now before us for review.

OPINION.

I.

The record before us discloses practically but one legal proposition, that is, in respect to the propriety of the action of the trial court in sustaining the demurrers interposed by the defendants to the petition in this cause. The entry of final judgment on the demurrers was -tantamount to a dismissal of the bill and we are simply confronted with the question as to whether the petition in this cause stated a cause of action.

This bill, upon the subject of the Glass Company stock, charged that there was a conversion of such stock by Heilman in bis lifetime, through Haeussler, his agent or trustee. However, it will be observed that there was an entire failure to allege that the Heilman estate or the agent or trustee, Mr. Haeussler, were insolvent. It must not be overlooked that this action invokes the strong arm of equity, and in order to arouse the action of such court it is essential that the bill allege such a state of facts as would indicate to the equitable side of the court that the relief sought could not be obtained in.a court of law. If Mr. Hellman or his agent or trustee, wrongfully converted the stock in the Glass Company, there is no reason why such wrongful act could not be remedied by an action for damages in a court of law. Hence, it must be held as to that charge, that the petition did not sufficiently state a cause of action which would authorize a court of equity to take jurisdiction. It is significant, and it is disclosed by the pleadings, that there has been no effort made to seek relief for this alleged conversion of their. Glass Company stock for a period of four years or more. If this stock was wrongfully converted, as alleged, an action at law could have been instituted against Heilman in his lifetime or the claim presented against his estate within-a proper time after his death, •but this was not done, and it is now alleged in this petition that there has been a final settlement of the estate. Such a course of conduct does not readily arouse the activity of a court of equity, and in no event would such court entertain jurisdiction unless it was made to appear upon the face of the petition that an action at law for the" conversion of the plaintiff’s property would not have afforded ample relief.

II.

This brings us to the consideration of the allegations in the bill in which it is sought to obtain a decree permitting plaintiffs to redeem the property on Market street.

In the petition it is admitted that plaintiffs executed the deed of trust under which the property was afterwards sold to Heilman and that the plaintiffs in this case had parted with their equity of redemption by deed to another prior to the sale under a deed of trust. It is also disclosed by the pleadings that “William Somerville had actual notice of the date of sale and had arranged to have a man there to bid on the property to the amount of the $18,500 deed of trust, but by oversight and negligence the man did not attend the sale. It also appears in this petition that Heilman brought suit against both of the plaintiffs and procured a judgment for the balance due upon the note, which was something over eight thousand dollars. If there had, been any fraud perpetrated upon the plaintiffs by reason of the sale under the deed of trust and by reason of such fraud the property failed to bring a sufficient amount to satisfy this note, that would have been a very appropriate time to have contested with Mr. Heilman his right to recover the balance upon that note.

In our opinion there are no sufficient allegations averring the facts which would constitute a fraud upon the part of the defendant Heilman or his agent or trustee, Mr. Haeussler, in the conduct in the foreclosure under the deed of trust. It is true there are loosely-worded allegations to the effect that promises were made to the plaintiff after the sale that they would be permitted to redeem at any time they got ready to do so, but so far as the allegations in the petition are concerned it does not appear that there was any consideration for any such promises, if they were made; neither is it made apparent by the allegations in the petition that Heilman ever authorized his agent and attorney, Mr. Haeussler, to mate any such promises.

We have carefully analyzed the allegations in the petition in this cause. We had occasion to fully consider them in the case of Heilman v. Somerville et al., and again renewed onr consideration of them in the present case, and we have reached the conclusion that the action of the trial court in sustaining the demurrers was manifestly proper, and the plaintiffs having refused to further plead, the judgment of the court upon such demurrers should be affirmed, and it is so ordered.

All concur.


author: BUEGESS, J. —

text:
    MOLLIE ELLIOTT and CHARLES L. ELLIOTT, Appellants, v. KANSAS CITY.
    Division Two,
    March 31, 1908.
    1. CAUSE OF ACTION: Survival: Personal Injuries. A cause of action for personal injuries to a married woman in which her husband joined her as plaintiff, does not, on her death prior to judgment, survive to her husband.
    2. -: -: -: Transmitted to Husband. Although the husband is a coplaintiff with the wife in the action by her for personal injuries received by her, and although she died from the effects of such injuries after suit was instituted, the cause of action is not, upon her death, transmitted to him by operation of law, and he cannot continue the action as surviving plaintiff. Such an action is not for the damage done him, but for the damages personal to her. An action for personal injuries did not survive at common law, and the statute (Sec. 96, ft. S. 1899) is but'declaratory of that law.
    Appeal from Lafayette Circuit Court. — How. Samuel Davis, Judge.
    Affirmed.

      L. A. Laughlin for appellants.
    (1) The action for wrongful death given by our (statute is not a new cause of action. The act continues or transmits to the persons therein named the same action which the party whose death is occasioned would have had had he lived. Proctor v. Railroad, 64 Mo. 119; White v. Maxey, 65 Mo. 558; Gray v. McDonald, 104 Mo. 311; Miller v. Railroad, 109 Mo. 360; Hennessy v. Brewing Co., 145 Mo. 112; Matz v. Railroad, 85 Fed. 180; Strode v. Railroad, 197 Mo. 625; Bellamy v. Whitsell, 123 Mo. Atvp. 610. (2) The claim of Mrs. Elliott for damages was merged in the judgment of April 25, 1904, and there remained until that judgment was set aside hy this court on October 17, 1906. Lewis v. Railroad, 59 Mo. 503; Crawford v. Railroad, 171 Mo. 82; Behen v. Railroad, 186. Mo. 445. (3) If the judgment of April 25, 1904, had been affirmed the husband would have had no right of action. Strode v. Railroad, 197 Mo. 626. (4) Amendments are allowed expressly to save a cause from the Statute of Limitations and courts have been liberal in allowing them. Lottman v. Barnett, 62 Mo. 170; Lilly v. Tobbein, 103 Mo. 491; State ex rel. v. Thompson, 81 Mo. App. 549; Courtney v. Blackwell, 150 Mo. 272. (5) . This cause survives by express provisiQn of the statute, section 756. Wood v. Griffin, 46 N. IT. 230; Syme v. Sanders, 2 Strobh. (S. C.) 332.

      Edwin G. Meservey and W. H. H. Piatt for respondent.
    (1) An action for personal injuries does not survive the death of plaintiff or defendant, but abates and cannot be revived. Bates v. Sylvester, 104 S. W. 73; Behen v. Railroad, 186 Mo. 430; Lewis, Admr. v. Railroad, 59 Mo. 503; Davis v. Morgan, 97 Mo. 79; R. S. 1899, sees. 96, 97; Beck v. Dowells, 40 Mo. App. 71. (2) When a married woman is injured by the negligence of another, two independent rights of action arise, one to the woman for the injuries to her body, for the incident pain and anguish; the other, the consequential injuries suffered by her husband in loss of society, services, etc. Womach v. St. Joseph, 201 Mo. 486; Wallis v. Westport, 82 Mo. App. 527; Chilar v. Railroad, 84 Mo. App. 346; Smith v. St. Joseph, 56 Mo. 456; Thompson v, Railroad, 135 Mo. 217; Furnish v. Railroad, 102 Mo. 660. (3)' An action by a married woman for personal injuries sustained by her is in effect an action of a femme sole, and her husband is not a party thereto in the larger legal sense. Womach v. St. Joseph, 201 Mo. 486; R. S. 1899', sec. 4340; Smith v. Warden, 86 Mo. 382; Blair v. Railroad, 89 Mo. 338; Bank v. Hageluken, 165 Mo. 443; Thompson v. Railroad, 135 Mo. 222-; Smith v. St. Joseph, 55 Mo. 456 ; Hicks v. Railroad, 68 Mo. 336; Mann v. Rich Hill, 28 Mo. App. 497; Walker v. Philadelphia,'195 Pa. St. 168. (4) If, on appeal to a court of last resort, a judgment for personal injuries is set aside and vacated, the claim is restored to its original nature, and does not survive in case of death of plaintiff. Behen v. Railroad, 186 Mo. 445; Crawford v. Railroad, 171 Mo. 68; Beck v. Dowells, 40 Mo. App. 71; Lewis, Admr. v. Railroad, 59 Mo. 503. (5) The right of action given by statute for death by wrongful act is compensatory and-penal, accrues only after death, and is different from that given by law to one for personal injuries sustained. Bates v. Sylvester, 104 S. W: 73; Strode v. Railroad, 197 Mo. 624; Behen v. Railroad, 186 Mo. 445; Marshall v. Mining Co., 119 Mo. App. 270; Hennessey v. Brewing Co., 145 Mo. 104; Casey v. Railroad, 116 Mo. App. 270; R. S. 1899', secs. 2864, 2865-, 2866; 8 Am. and Eng. Ency. Law (2 Ed.), 858-9. (6) The law does not give one a pecuniary interest in his own death. An action for personal injuries cannot be transformed into an action for death by wrongful act. The alleged amended and supplemental petition appellant seeks to file herein is an attempt to substitute an action for death by wrongful act for an action for personal injuries, and cannot be allowed. Strode v. Railroad, 197 Mo. 616; Purdy v. Pfaff, 104 Mo. App. 331; Eoss v. Land Go., 162 Mo. 317; Prehm v. Porter, 165 Mo. 115; Burnham v. Tillery, 85 Mo. App. 453; Lennox v. Goal Go., 158 Mo. 473; Courtney v. Blackwell, 150 Mo. 280; Buel v. Eailroad, 45 Mo. 562; "Walker v. Eailroad, 193 Mo. 473; Lilly v. Tobhein, 103 Mo. 490'; Bricken v. Cross, 163 Mo. 453; Garren v. Eailroad, 60 Mo. 405; Sidway v. Mo. Land & Live Stock Co., 116 Fed. 390 ; Patillo v. Allen Com. Co. [C. C. A."), 131 Fed. 681; Eailroad v. Wyler, 158 U. S. 285; 8 Am. and Eng. Ency. Law (2 Ed.), 858-9'.
   BUEGESS, J. —

This is an appeal" from a judgment holding that an action for personal injuries does not survive plaintiff’s death.

Plaintiff Mollie Elliott,- a married woman, on September 15, 1898, brought action in the circuit court of Jackson county against the defendant for damages for personal injuries caused by a fall on a defective sidewalk in defendant city, the trial resulting in a judgment for $500. in her favor. The plaintiff brought this judgment on a writ of error to this court, where it was reversed and the cause remanded. [174 Mo. 554.] On June 9, 1903, an amended petition was filed in said circuit court by Mollie Elliott and Charles L. Elliott, her husband, and the cause was transferred by change of venue to the circuit court of Lafayette county, where, on April 25, 1904, plaintiff recovered judgment against the defendant for $8,000. Defendant appealed to this court, and on October 17, 1906, this second judgment was reversed and the cause remanded. [198 Mo. 593.] During the pendency of the appeal, and on the 14th day of August, 1904, Mollie Elliott died from the effects, as counsel claims, of the injuries caused by her fall on the sidewalk. The mandate of this court was filed in the office of the clerk of the Lafayette Circuit court on October 30, 1906. At the April term, 1907, of said cireuit court, the defendant filed its motions to dismiss and abate the cause on account of the death of Mrs. Elliott, and plaintiff Charles L. Elliott filed his motion for leave to file an amended and supplemental petition. At the August term, 1907, of said court the motion of plaintiff, Charles L. Elliott, was overruled, and the motions filed by defendant to dismiss and abate the cause were sustained, and the court rendered judgment abating the cause. Prom this judgment plaintiff, Charles L. Elliott, appeals.

The question before us for decision is as to whether this action for personal injuries by Mollie Elliott, in which her 'husband, Charles L. Elliott, was joined with her, survived to him upon her death during the pendency of the suit. That such an action, in the absence of statutory provision, does not survive is, we think, well-settled law.

Section 96, Revised Statutes 1899, provides that “for all wrongs done- to property, rights or interests of another, for which an action may be maintained against the wrong-doer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrong-doer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract.”

Section 97 provides that “the preceding section shall not extend to actions for slander, libel, assault and battery or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff,” etc.

It is perfectly clear that the cause of action which existed in favor of Mollie Elliott did not, under these sections of the statute, survive to her husband, and as none existed at common law, her cause of action did not survive to him upon her death.

It is, however, suggested in behalf of the husband that as he is a co-plaintiff with his wife in the action by her for personal injuries received by her, and as she died from the effects of the injuries, the cause of action, at her death, is transmitted to him by operation of law and he can continue the action as surviving plaintiff, and that the court should not insist upon the technicality of requiring the husband to bring a new suit when he is already a plaintiff in the same action.

The answer to this contention is That an action for personal injuries did not survive at common law, and the statute quoted is only declaratory of ‘that law. [Davis v. Morgan, 97 Mo. 79; 1 Cyc. 50.]

In Beck v. Dowell, Exr., 40 Mo. App: 71, the plaintiff, a minor, prosecuted her suit by her next friend against the defendant, Zachariah Harris, for assaulting and shooting her with a pistol, and recovered judgment against him for seven hundred and -fifty dollars. After the appeal was taken, the defendant died, and the appeal was prosecuted in the name of his executor. The .court said: “If the. judgment is reversed, the plaintiff is remitted' to her original claim, and, as that claim is one for injuries to her person, it is lost forever. [R. S. 1879, secs. 96, 97; Stanley v. Bircher, 78 Mo. 247.]”

The question of survivorship in actions for personal injuries received full consideration in the recent ease of Bates v. Sylvester, 205 Mo. l. c. 500, wherein it was said: “Indeed, we are of the opinion, in view of the state of the law when sections 96 and 97 were enacted, it was the intention of the Legislature to provide for the survivor by and against personal representatives of actions for wrongs to property rights and interest only, and that by this enactment, without more, no action would lie based upon the death of a human being, and no right of action for tort to the person would survive the death of either the wronged or the wrong-doer.”

If Mrs. Elliott was injured by tbe negligence of tbe defendant, and she was at the time a married woman, two independent rights of action accrued; one. in favor of the husband for loss of her services and society, and for expenses necessarily incurred in and about her care and nursing and for medical attention (Smith v. St. Joseph, 55 Mo. 456; Furnish v. Railroad, 102 Mo. 669; Womach v. St. Joseph, 201 Mo. 467); the other in favor of the wife for the injuries to her person, for her suffering, pain and anguish, and the expenses by herself paid.

In a suit by the husband for loss of service of the wife, etc., the wife is not a necessary party; nor is the husband a necessary party in a suit by the wife for personal injuries. Plaintiff Charles L. Elliott has no interest in the prosecution of this suit. He could never have maintained an action of this character during the life of his wife, and, hence, the wife might have sued alone. [Sec. 4340, R. S. 1899; Womach v. St. Joseph, supra.]

It follows that no error was committed in sustaining the motion to dismiss and abate the suit. The judgment is affirmed.

All concur.


author: GANTT, J. —

text:
    C. O. TRASK v. LIVINGSTON COUNTY, Appellant.
    Division Two,
    March 31, 1908.
    1. COUNTY: Indebtedness. The Constitution permits the county court to anticipate the current revenues to the extent of the county’s income for the year in which a debt is contracted or created, but prohibits the anticipation of the revenues for ahy ' future year. A 'bridge contracted for in September is to be paid for out of the revenue of the year in which the contract is made, if the appropriation therefor is not in excess of such revenues, and cannot be paid for out of the revenues for the next year, even though completed and accepted the next year.

      2. -: -: Date: Bridges. The Constitution in declaring that "no county shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year," and the statutes in forbidding the doing of anything “towards building the bridge after the letting thereof, until an appropriation for the same shall first be made by the county court,” mean that the county becomes indebted for the bridge when tne contract therefor is made, and that the appropriation to pay for the same must he made out of the revenue for that year and do not mean that the bridge can be paid for by an appropriation out of the revenue for the next year, even though the bridge is finished the next year. The date of the county’s indebtedness, under the Bridge Act, if valid at all, is the year in which the contract is made, and not the next year when the bridge is completed and accepted and warrants issued to' pay for it. [Distinguishing Saleno v. Neosho, 127 Mo. 639; Lamar Water & E. L. Co. v. Lamar, 128 Mo. 188; and. Water & Light Co. v. Lamar, 140 Mo. 156.]
    3. -: -': Appropriations. The county court is not authorized to appropriate revenues which were to he derived ffom taxation for the next year when such taxes have never been assessed, levied or collected.
    4. -: -: —,-: Bridges. The statute requires the county court to make an appropriation for- a bridge out of the revenues before the Road and Bridge Commissioner lets the contract therefor, and to make such appropriation out of the revenues for that year, and if that appropriation is not in excess of the revenues for that year, the court may the next year, when the bridge is completed and accepted, issue warrants against the revenues of the year in which the appropriation was made, and be compelled to pay them.
    Appeal from Linn Circuit Court.— Hon. Jno. P. Butler, Judge.
    Aeeirmed.

      John H. Taylor and F. Sheetz & Sons for appellant.
    The income and revenue for the year 1890 was exhausted by the payment of warrants issued prior to those in suit, and' prior to the issuance of the warrants sued on defendant had become indebted in excess of its income and revenues for said year of 1880’, and said warrants are void. Const., seo. 12, art. 10; Saleno v. Neosho, 127 Mo. 639; Lamar v. City of Lamar, 128 Mo. 188 ; Water Company v. City of Neosho, 136 Mo. 511; Water Company v. City of Lamar, 140 Mo. 156; Bank v. Douglass County, 146 Mo. 56; East St. Louis v. East St. Louis, 98 111. 415; Dively v. C'edar Falls, 27 Iowa 227; City of Valparaiso v. Gardner, 97 Ind. 1; Weston v. City of Syracuse, 17 N. T. 110; Rome v. McWilliams, 67 Ga. 118; Smith v. Dedham, 144 Mass. 177. The county did not become indebted on the bridge contract of 1889 until the bridges were completed and accepted. Lum v. Steamboat Buckeye, 24 Miss. 565; Trowbridge v. Sickler, 42 Wis.-417; Chicag-o v. Galpin, 183 111. 408; Saleno v. Neosho, 127 Mo. 639.

      Tatlow & Mitchell for respondent.
    (1) Livingston county became indebted to the Clinton Bridge and Iron Company, in September, 1889, at the time the written contract was executed pursuant’ to the previous order of the county court accepting its bid and ordering the Road and Bridge Commissioner to enter into such contract with it on behalf of the county. The constitutional provision relied upon by defendant, providing that “no county . . . shall be allowed to become indebted in any manner, or for any purpose, to an amount exceeding in any year the income and revenue provided for such year,” article 10, section 12, by its express terms settles this question. It fixes each year as a unit of time, which corresponds with the well-known fact that taxes in this, and all .other states, are levied and collected annually. This provision, by necessary implication, permits the anticipation of the current revenues to the extent of the year’s income in which the debt is contracted or created, and by its express terms prohibits the anticipation of the revenues of any future year. Any other construction renders the constitutional provision meaningless. Gray’s Lim. of Tax. Power and Pnb. Indebtedness, secs. 2072, 2077, 2162. (2) Unless the statute is complied with there is no liability, express or implied, on the part of the county to pay for the bridge or building. Heidelberg v. St. Francois Co., 100 Mo. 69'; Anderson v. Ripley Co., 180 Mo. 46; Walcott v. Lawrence Co., 26 Mo. 272; Phillips v. Butler Co., 187 Mo. 713; City of Unionville v. Martin, 96 Mo. App. 36; Dougherty v. Excelsior Springs, 110 Mo. App. 626. The above cases establish beyond controversy that the mere acceptance of the bridges by the county court, and the use thereof by the public,' did not create an indebtedness against the county, and the case relied upon by the defendant county, as well as the above cases, expressly hold that the mere issuance of the warrants did not create the indebtedness. Bank v. Douglas Co., 146 Mo. 42. The indebtedness was created, if at all, by compliance with the Bridge Act, that is, by letting and making the contract as therein provided. Of course, the county would not be required to pay for the bridges unless they were constructed in accordance with the contract. The debt existed at the time the contract was made, but did not mature or become payable until the contract was performed by the Bridge Company. (3) The question as to when the county became indebted by reason of such transaction is to be determined by the “income and revenue provided for such year,” which is to be looked to for the payment of such indebtedness. This, under the plain terms of the Constitution, the bridge chapter and all of the authorities, was the “income and revenue provided for the year” 1889, and not the “income and revenue provided for the year” 1890 that had neither been assessed, levied nor collected. In other words, the contract was necessarily made with reference to the “ income and revenue” of a particular year, and could not be so made as to be ambulatory in its nature and applicable to the year in which the bridge might happen to be •completed, whether in 1889 or 1890. State ex rel. v. Allison, 155 Mo. 313; Gray’s Lim. of Tax Power and Pnb. Indebt., sec. 2076; 2 Smith’s-Ed. Beach’s Modern Law on Mnn. Corp., sec. 902. (1) Contracts for the annual supply of water, gas and light are the exceptions to the general rule, and are no authority for anticipating the future revenues of a city or county for years other than the one in which the contract is made ■for the purpose of erecting bridges, buildings, water, ■gas or electric works, or for constructing streets, roads -or other permanent improvements. The authorities •are quite as uniform in announcing this doctrine as they are in upholding contracts for the annual supply •of water, etc. Culbertson v. City of Pulton, 127 111. 30; City of La Porte v. Gamewell, 116 Ind. 166; Earles ■v. Wells, 91 Wis. 285; Hall v. Cedar Rapids, 115 Iowa 199 ;■ Reynolds v. Citv of Waterville, 92 Me. 292; Spill-man v. City of Parkersburg, 35 W. Va. 605; Baltimore, ■etc. v. People, 200 111. 511; Putman v. Grand Rapids, 58 Mich. 116; Grant v. City of Davenport, 36' Iowa 396; Gray’s Lim. of Tax. Power and Pub. Indebtedness, sec. 2083. (5) “The commissioners shall do ■nothing towards building the bridge, or letting thereof, until an appropriation for the same shall first be made by the county court.” Sec. 5188, R. S. 1899; 2 Am. and Eng. Ency. Law (2 Ed.), 515; Clayton v. Berry, '27 Ark. 131; Woodward v. Reynolds, 58 Conn. 190; State v. Bordelon, 6 La. Ann. 68. (6) The county ■ should not go in debt for the purpose of erecting bridges. It is absolutely beyond all doubt that under the provision of the Constitution no county shall be ■allowed to become indebted in any manner, or for any ■purpose, to an amount exceeding in any year the in•come and revenue provided for such'year, and under the statute expressly requiring an appropriation to build bridges, that the appropriation must be made out of the money then actually in the treasury, or to come into the treasury during the year in which the contract was made from taxes then assessed and levied, or to be levied and collected during the year in which the contract was made. Gray’s Lim. of Tax. Power and Pub. Indebt., secs. 2076, 2076a, 2077 and 2078; La Porte v.. Gamewell, 146 Ind. 446; City of Springfield v. Edwards, 84 111. 626; Stone v. Chicago, 207 111. 492; 2 Smith’s Beach’s Modern Law onMun. Corporations, sec. 902; State ex rel. v. Johnson, 162 Mo. 621. (7) The record is silent as to when the bridges were actually completed and opened to the public. In the absence of any such showing, the presumption is that the Bridge Company kept and performed its engagement and completed the bridges in the year 1889, and had them ready for use by the public on the first day of January, 1890. Lenox v. Harrison, 88 Mo. 49'6; State ex rel. v. Bank, 120 Mo. 169; Agan v. Shannon, 103 Mo. 661; McAllister v. Ross, 155 Mo. 87; State to use v. Crumb, 157 Mo. 545. (8) The indebtedness for the construction of the bridges having been created in 1889, the warrants therefor, although issued in 1890, cannot be counted for the purpose of .swelling the indebtedness of the county for the year 1890, so as to render the warrants sued upon by the appellee invalid. "Wilson v. Knox County, 132 Mo. 398.
   GANTT, J. —

This is an action by the' plaintiff as the assignee of seventeen warrants issued by the county court of Livingston county to the original holders thereof for materials furnished and work and labor done for said county in the year 1890.

The petition counts separately upon each warrant and its assignment to plaintiff, its presentation to the county treasurer, and its dishonor and protest, and judgment is prayed for the aggregate of all of said warrants with interest.

The answer pleads that the said several warrants ‘were issued in excess of the revenues of said county for the year 1890 and also invokes the five-year Statute of Limitations. The reply was a general denial. The venue was changed to Linn county. A jury was waived and the cause tried to the court, and resulted in a judgment for plaintiff for $2,407.75, at the December term, 1904. The facts developed on the trial were as follows:

Plaintiff offered and read in evidence warrants one to sixteen inclusive which correspond with the several counts of the petition based thereon, and as no point is made on them, by agreement of counsel they" were omitted from the bill of exceptions. Plaintiff then read in evidence the following stipulation:

“In the Linn Circuit Court, October term, 1904.
“C. O. Trask vs. Livingston County.
“For the purpose of saving costs, the parties in the above-entitled suit agree that the total income and revenue provided for the year 1890 for the said Livingston county, Missouri, amounted to the sum of $21,283.66.
“Second. That the following is a complete and correct copy of the register of warrants for the year 1890 in Livingston county, Missouri, and as contained in the county clerk’s warrant register No.-2 beginning at warrant No. 4963, issued on January 6th, 1890, and ending with warrant No. 5988, issued on December 30th, 1890, which are not copied herein but amount to total issue of $26,782.86. .
“Third. That the signatures to the warrants sued on, to-wit, the signatures of the county clerk and the presiding judge of the county court of said county, are genuine, as well as the signatures of the county treasurer, showing the respective dates of presentment and protest of said warrants; and also the signatures of the respective assignments thereon are likewise genuine.
“Fourth. It is agreed that any additional proof may be offered by either side as to these facts or any other facts material in this case.”

Plaintiff then offered and read in evidence exhibit “B” consisting of copies of eleven warrants with their endorsements, Nos. 5379 to 5390 inclusive, all payable out of money in the treasury appropriated for Bridge Fund and each for $500', except the last, which is for $197. As no point is made as to their form it is unnecessary to set them out at length. All of which eleven warrants were payable to the Clinton Bridge and Iron Company, each for $500, except No. 5390, which was for $197, all protested May 20th, 1890, all of which were assigned to the Clinton National Bank and by it assigned to W. F. Carter, Jr., and upon which an action was brought in the circuit court of Livingston county and then pending, to the introduction of which defendant duly objected as irrelevant and not the best evidence.

" Plaintiff then offered the report of the Road and Bridge Commissioner of the bids for building a county bridge over Grand River between Chillieothe and Utica, showing the bid of the Clinton Bridge and Iron Company to be $4,874 and the lowest bid thereof, and of H. Hedges of the same company for the bridge over Shoal Creek for $820 to be the lowest bid, which were approved by the county court and contracts ordered to be let and an appropriation made for each on the 5th day of September, 1889, at the August adjourned term of said county court.

Contracts were entered into in writing by said Bridge Company and the Road and Bridge Commissioner of said county on September 7th, 1889, whereby said bridge company agreed to complete said bridges on or before January 1st, 1890, and maintain the same for four years from- and after their completion, for which the county agreed to pay said sums of $4,874 and $820 in county warrants to he drawn at the first meeting of the county court after the completion and acceptance of said bridges. The bridge company also-entered into a bond for its faithful performance of said contracts. Afterwards on May 19th, 1890‘, said bridges, were accepted and on May 20th, 1890', warrants were ordered issued and were issued therefor.

At the conclusion of all the evidence defendant prayed the court to declare the law to he that under the pleadings and the evidence the finding must be for defendant, which was refused and defendant excepted. Thereupon the court found all the issues for plaintiff on each of said counts, and rendered judgment in the-aggregate for $2,407.75, to bear interest at six per cent from its rendition. On the same day defendant filed its motions for a new trial and in arrest which were-heard and overruled and defendant excepted.

I. Prom the foregoing statement, it becomes apT parent that there is one single issue on this appeal-and that is, were the warrants sued on issued in excess of the income and revenues of Livingston county for the year 18901 Or, stated in a different form, did said county become indebted on September 7th, 1889, the, date of the bridge contract, to the amount of $5,694, or on May 20th, 1890, when it issued its twelve warrants to the Clinton Bridge and Iron Company? It is conceded and agreed that the total income and revenue of said county for the year 1890, was $21,283.66, and the warrants issued that year amounted to $26,782.86, and this last sum included the twelve bridge warrants aggregating $5,694. If the $5-,694 is to he deducted from the total amount of warrants, $26,782.86, issued by the county in 1890, then the warrants chargeable against the income and revenue for that year amounted to $21,088.86, a sum less than the total income and revenue, to-wit, $21,283.66, and they are a valid indebtedness. On the other hand if these bridge warrants to the amount of $5,694 are not to be subtracted, then the warrants for 1890 exceeded the total income and revenue for 1890> and as the warrants sued on were among-the last issued that year, they were in excess of the income and" revenue and plaintiff is not entitled to recover. The simple question then is, when did Livingston county become indebted to the Clinton Bridge-Company? In September, 1889-, when the county court accepted its bid and directed the bridge and road commissioner to enter into the contract for the construction of said bridges and he entered into said contract, or not until it accepted said bridges and drew its warrants therefor May 20th, 1890? If in Septembei*, 1889,. that indebtedness was not for 1890, and is not to be charged against the revenue provided for 1890, and plaintiff’s warrants issued for indebtedness created in 1890 and within the revenue provided for that year are valid. The circuit court held that the bridge contract was an indebtedness incurred in 1889 and not in 1890, and that plaintiff’s warrants were issued for indebtedness incurred for current expenses in 1890 and were issued within the revenue provided for the year 1890 and plaintiff was entitled to recover.

By section 12 of article 10 of the Constitution of Missouri (1875), it is ordained: “No county . . . shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year. . . . ’ ’ Counsel for the county insist that the county did not become indebted to the bridge company until the bridges were accepted and the county court issued the warrants therefor on May 20, 1890, and in support of their position rely upon the decisions of this court in Saleno v. Neosho, 327 Mo. l. c. 639; Lamar Water & E. L. Co. v. City of Lamar, 128 Mo. 188; Water Company v. Neosho, 136 Mo. l. c. 511; Water & Light Co. v. City of Lamar, 140 Mo. l. c. 156, and Bank v. Douglas County, 146 Mo. l. c. 56.

On the other hand, counsel for plaintiff distinguish those cases and insist the indebtedness accrued when, the court accepted the bridge company’s bid, made the appropriation, and the Road and Bridge Commissioner under the order of the court made and entered into the contract to pay the amount bid when the bridge should be completed according to the contract, which required the bridge to be completed on or before January 1, 1890. It may as well be stated here and now that the county did not show that the bridges were not completed according to the contract in the year 1889, though it did show they were not formally accepted until May, 1890, and the warrants issued then.

The constitutional provision found in section 12 of article 10 of that instrument has often been construed by this court. In Book v. Earl, 87 Mo. l. c. 252, it was well said: “The evident purpose of the framers of the Constitution and the people who adopted it was to abolish, in the administration of county and municipal government, the credit system and establish the cash system by limiting the amount of tax which might be imposed by a county for county purposes, and limiting the expenditures in any given year to the amount of revenue which such tax would bring into the treasury for that year. Section 12, supra, is clear and explicit on this point. Under this section the county court might anticipate the revenue collected, and to be collected, for any given year, and contract debts for ordinary current expenses, which would be binding on the county to the extent of the revenue provided for that year, but not in "excess of it.”

For a proper determination of whether the county became indebted for tbe bridges to tbe Clinton Bridge •and Iron Company .in 1889 or in 1890, the law of. this State in regard to building and providing bridges where the estimated expense exceeds fifty dollars, must be kept in view and considered. Section 5183, Revised' [Statutes 1899, requires all such bridges to be built by the county. By section 5185, the county court must determine in what manner and of what materials the bridge shall be. built and the probable cost thereof and require the road commissioner to proceed to the spot where the bridge is to be built and make an accurate -estimate of the cost of the building of the same, according to any plan or plans ordered by the court, or such as in the commissioner’s opinion may be best and without delay make report thereof to the court, and order the commissioner to let the contract for building and keeping the same in repair for not less- than two nor more than four years, to be determined by the court. The commissioner is required to advertise the time •and place of letting the bridge not less than twenty days prior to letting the contract. The commissioner at public outcry or by sealed bids lets to the lowest bidder subject to the approval or rejection of the county court. “If such letting be approved by the court, it shall make an appropriation for building such bridge, and order the commissioner to contract therefor at the price let, who, in contracting, shall take bond, payable to the county, with two good and sufficient sureties, . . . sufficient to cover all damages that may. accrue from the breach of the contract.” By section 5188, the commissioner is forbidden- to do anything * ‘ toward building the bridge after the letting thereof, ’.until, an appropriation for the same shall first be made by the county court. ’ ’ Section 5190 forbids any county court in this State to approve any contract for building or repairing any bridge not made in the manner provided by said chapter 84, Revised Statutes 1899. It will be observed the statute requires the county court to make an appropriation to pay for the bridge before it is let or built and expressly forbids the making of a bridge contract in any other manner than as provided by that chapter. It can be stated as the settled law in this State that, if the Bridge Company had without any public letting, written contract or appropriation built'these bridges and completed them on May 19, 1890, and the county court had on May 20, 1890, issued warrants for what it conceived was the reasonable value thereof, such warrants would not have constituted a valid indebtedness of said county. [Heidelberg v. St. Francois Co., 100 Mo. 69; Anderson v. Ripley County, 181 Mo. 46; Wolcott v. Lawrence County, 26 Mo. 272; Phillips v. Butler County, 187 Mo. 698.]

In Mountain Grove Bank v. Douglas County, 146 Mo. 42, it was expressly held that the mere issuance of the warrants did not create an indebtedness. Hence, the indebtedness for tbesé bridges was created, if at all, by a compliance with the law governing the letting and contracting for bridges already noted. When the county became indebted on these bridge contracts must be determined by the “income and revenue provided for such year,” which under the Constitution must be looked to- for the payment of such indebtedness and it was the “income and revenue provided” for the year 1889, which the county court was authorized to appropriate for that purpose, and not the revenue for the year 1890, which at the date of the contract for the building of said bridges had never been assessed, levied or collected. The language of the Constitution is, “No county . . . shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year. ’ ’ It has been uniformly construed that this provision of the Constitution permits the antieipation of the current revenues to the extent of the year’s income in which the debt is contracted or created and prohibits the anticipation of the revenues of any future year. Any other construction would render section 12 of article 10 nugatory, for if the county court of Livingston county in September, 1889', could anticipate the revenue of 1890, it could also anticipate the revenues of 1891 and 1892, and would leave the power of the county with reference to indebtedness what it was before the Constitution of 1875' was adopted. In Gray’s Limitation of Taxing Power and Public Indebtedness, section 2162, the author expresses the view that “the time when the debt actually comes into existence as a binding obligation on the municipality, is the time as to which all calculations as to its validity should be made.”

But it is earnestly.urged by coilnsel for the county, that the decisions of this court in Saleno v. Neosho, 127 Mo. 639, and the subsequent cases of Lamar Water & E. L. Co. v. Lamar, 128 Mo. 188, and Water & Light Co. v. Lamar, 140 Mo. 156, settled this question by holding that the indebtedness of the county was not created until the bridges were completed. In Saleno v. Neosho, supra, and the kindred cases following it, the question was whether a contract by which the city agreed to pay the Water Company for the use of water for the city and other purposes $2,000' per year for a term of twenty years, was a creation of a debt in the aggregate for $40,000', or was an obligation to pay $2,000 a year if the water was supplied according to contract. And it was ruled that it was not the creation of an indebtedness for the aggregate of the instállments to be 'paid under the contract, this court saying: “A debt is understood to be an unconditional promise to pay a fixed sum at some specified time, and is quite different from a contract.to be performed in the future, depending upon a condition precedent, which may never be performed, and which cannot ripen into a debt until performed. Here the hydrant rental .depended upon the water supply to be furnished to the defendant, and if not furnished no payment could be required of it.” In Lamar Water & E. L. Co. v. Lamar, 128 Mo. l. c. 222, this court quoted with approval from Judge Dillon in his work on Municipal Corporations, as follows: “Under the constitutional provisions, in Iowa, Illinois, Indiana and Pennsylvania, referred to, it is held that a corporation may make a contract (at least, for necessaries) covering a series of years, upon which an obligation to pay may arise from year to year as the thing contracted for is furnished, and in such case,' the whole amount which may ultimately become due does not constitute a debt within the constitutional prohibition. But in order to ascertain whether the corporation by such contract is transgressing the limit, regard is had only to the amount which may fall due within a certain year or other period; and if the revenues for that year or other period are sufficient, over and above the payment of the other expenses, to pay such amount, there is no debt incurred within the constitutional prohibition.” [1 Dillon’s Municipal Corporations (4 Ed.), sec. 136a.] In that case it was further said: “The term ‘indebtedness’ is a wide one, and must be construed in every case in accord with its context. It has been very recently considered, in its application to the subject in hand, by the Court In Banc, and the conclusion was announced that such an obligation to pay an agreed sum, year by year, for the furnishing of certain necessary supplies during a term of twenty years, was not an immediate indebtedness for the entire amount that might ultimately become due by installments during that term.” [Saleno v. Neosho, 127 Mo. 627.] It .will, we think, be seen upon close examination of Saleno v. Neosho and the Lamar cases that the great question was whether there was an aggregate indebtedness created in the beginning which would exceed the debt-making power of the corporation or whether the indebtedness should be treated only as an obligation which would arise from year to year as the water contracted for was furnished, and in order to ascertain whether the municipal corporation was transgressing the constitutional limit regard was had only to the amount which might fall due within a certain year and if the revenue for that year was sufficient over and above the payment of other expenses, then there- was no debt incurred within the constitutional prohibition. In other words it was practically decided that although the contract was for twenty years it was considered by the court from the debt-creating point of view as if it had been twenty separate contracts, one covering each .year. And the authorities all agree that if the amount to be paid in any year under such a contract exceeds the income and revenues for such year against which it is a charge, it would be invalid, at least to the extent of such excess. There are many considerations which in-our opinion sustain the decisions in those cases, but they afford no authority for holding that the county court in this State under the Bridge Act can contract for a. supply of bridges 'covering a period of years, one bridge to be built each designated year and to he paid for out of the revenue for the year in which it shall be built. All the provisions of the Bridge Act are inconsistent with any such power in the county court.

We think that the indebtedness for these bridges was incurred, if at all, by the letting and making of the contract therefor in September, 1889.

In Culbertson v. City of Fulton, 127 Ill. 30, the Supreme Court had this question before it. The city on August 15, 1887, entered into a contract for the construction of a system of waterworks for the city, and the plant was completed in February, 1888. If the indebtedness was created on the date of the contract then the assessment for the year 1886 was to govern; if created in February, 1888, at the time the plant was completed and ready for acceptance, then the assessment, of 1887 governed. The question was when was the debt incurred? And the court held that by entering into the contract on August 15, 1887, the city became indebted within the meaning of the Constitution of Illinois, which on this subject is almost in the exact words of our Constitution, the court saying: “It cannot be said that the indebtedness did not come into being until the work was completed and accepted by the city. The city bound itself to pay for the work when it should be completed, and could be compelled to do so, if the work should be done according to the contract. . ... A debt payable in the future is obviously no less a debt than if payable presently.” In City of Laporte v. Telegraph Co., 146 Ind. 466, it was held that a contract by a. city for a fire-alarm system at a time when the city was indebted more than two per cent on the assessed valuation of its taxable property, was void under the provision of article 13 of the Constitution of that State limiting municipal indebtedness to two per cent of the value of the taxable property, where such city had no money in the treasury to pay for such system either at the time the contract was made or when the same was completed and accepted, although there were sufficient' funds on hand to pay for it at the time fixed by the contract for such payment. Said the court: ‘ ‘ The controlling question in this case is, do the facts found show an indebtedness of appellant within the inhibition imposed by the foregoing article of the Constitution? A debt in its general sense is á specific sum of money which is due or owing from one person to another, and denotes not only an obligation of the debtor to pay, but tbe right of the creditor to receive and enforce payment. [State ex rel. v. Hawes, 112 Ind. 323; Crowder v. Town of Sullivan, 128 Ind. 486.] It is the rule in this State that when a municipal corporation contracts for a usual and necessary thing, such as water or light, and agrees to pay for it annually or monthly, as. furnished, the contract does not create an indebtedness for the aggregate sum of all of the installments, since the debt for each year or month does not come into existence until it is earned. The earning of each year’s or month’s compensation is essential to the existence of a debt. [Citing authorities.] If the city can pay this indebtedness when it comes into existence without exceeding the constitutional limit there is no indebtedness and therefore no violation of the Constitution. But if the indebtedness of the city already equals or exceeds the constitutional limit, and the current revenues are not sufficient to pay such indebtedness when it-comes into existence, including other expenses for which 'the city is liable, an indebtedness is thereby created and there is a violation of the Constitution.” It will be observed that the Indiana Supreme Court takes the same view of water and light contracts for which the city or county is to pay annually as the water or light is furnished, that this court took in the Neosho and Lamar cases, and yet, it held that the contract in-that case for the fire-alarm telegraph constituted an indebtedness within the meaning of the Constitution and distinguished it from cases in which the debt is created in installments payable annually when the water or light is furnished.

But confining ourselves to the facts in evidence and the statute governing the building of bridges, as already said the statute required the county court to make an appropriation before the-Road and Bridge Commissioner let the contract. The record shows that the county court on the 5th of September, 1889', made an appropriation to-pay for the building of the bridges. Now, out of what revenue was it authorized to make this appropriation, that of 1889 or that of 1890? We think the Constitution answers this question: they could only make it out of the revenue of 1889', and in this particular case this conclusion is «reinforced by the fact that the bridges contracted for were to be completed in the year 1889, and as the obligation was incurred in 1889 and the bridges were to be built in that year and the appropriation was made in that year, we think there can be no escape from the conclusion that the indebtedness thereby created was a charge against _ the revenues provided for the year 1889', and not the revenues of 1890'. Clearly the county court was not authorized to appropriate revenues which were to be derived from taxation in the year 1890-, when such taxes, had never been assessed, levied or collected. While the county court may in any one year draw warrants, after the revenue has been provided and the taxes levied within the scope of the levy and income for such year; it is too plain for argument that the Constitution forbids the anticipation of the revenues of any subsequent years; if not, all that has been said in regard to the force and effect of section 12 of article 10 of the Constitution to the effect that its purpose was to put counties upon a cash system instead of the old credit plan, has been in vain.

In our opinion, the bridge warrants offered and read in evidence were, if valid at all, chargeable against the revenues of said county for 1889, and we think should be deducted from the total amount of warrants issued in 1890, and this being so the plaintiff’s warrants were a legal and valid charge for the current expenses of the said county for the year 1890 and the judgment of the circuit court awarding plaintiff judgment therefor was correct and is affirmed.

Fox, P. J., and Burgess, J., concur.