author: BOND, J.

text:
    S. A. KELLER et al., Plaintiffs in Error, v. R. F. SUMMERS.
    Division One,
    December 2, 1914.
    1. APPELLATE JURISDICTION: Disagreement of Judges of Court of Appeals. Upon a transfer of a cause from a Court of Appeals to tlie Supreme Court in tlie method prescribed by Sec. 6 of the Amendment of 1884, the latter court has complete and sole jurisdiction.
    2. -: -: Words Used By Judge: Use of Word Decision. It is not necessary that the judge of a Court of Appeals who deems its decision in a certain cause to be in conflict with some prior decision of the Supreme Court or another Court of Appeals, to employ any stereotyped terms to express that idea. It is not even necessary that he use the word “decision.” If he in clear terms says that “to reverse the judgment in this cause would be in conflict with” certain mentioned cases either of the Supreme Court or a Court of Appeals, that is sufficient.
    3. -:--: Opinion Means Decision. Within the meaning of Sec. 6 of the Constitutional Amendment of 1884, declaring that “when any one of said Courts of Appeals shall in any cause or proceeding render a decision which any one of the judges therein sitting shall deem contrary to any previous decision of any one of said Courts of Appeals, or of the Supreme Court,” the cause shall be transferred to the' Supreme Court, an opinion in which a majority of the judges of a Court of Appeals concur, is a “decision.” It was the principles of law announced and adjudications made that concerned the framers of the amendment, and they are found in opinions.
    4. .-: -: Whole Case. When a cause is certified to the Supreme Court by a judge of a Court of Appeals on the ground that he deems its decision to he in conflict with some previous decision, etc!, the whole case is for review, just as if it had never been considered by said Court of Appeals.-
    5. PUNITIVE DAMAGES: No Actual Damages. Punitive damages may be recovered where a proper basis therefor is laid in the petition and proved, although the plaintiff recover only nominal actual damages.
    6. -: Recovery on Grounds Not Pleaded: Fraud: Larceny. Where the petition charged that defendants obtained plaintiff’s certificate of deposit for $300 by fraud, conspiracy and procuring him to become drunk and a party to a gambling game, but did not impute to them the technical crime of larceny, an instruction, property hypothesizing the conditions upon which he can recover actual damages, is error if it authorizes the jury to. return a -verdict for punitive damages if they believe the defendants had stolen the certificate.
    7. --: -: Segregated Error. But the error of a verdict for punitive damages authorized by an instruction on a ground not pleaded, does not affect that part of i-t for actual damages, and the finding for punitive damages being capable of segregation from the rest of the verdict, the judgment will be affirmed, notwithstanding said erroneous instruction, if plaintiff will file a remittitur of the punitive damages.
    Error to Jasper Circuit Court. — Hon. Haywood Scott, Judge.
    Affirmed (conditionally).

      M. R. Lively for plaintiffs in error.

      H. W. Currey, George V. Farris and W. J. Owen for defendant in error.

      STATEMENT.
    This suit was decided by the Springfield Court of Appeals by the affirmance of the judgment for plaintiff on the second count of his petition and the reversal and remanding of his judgment on the fourth count of his petition. One of the members of that court dissented to the reversal and remanding in a written opinion, setting forth the grounds of his dissent and stating that “to reverse that part of this judgment,” etc., “is also in direct conflict with Cartwright v. Culver, 74 Mo. 179, . . . and also in direct conflict with Poster v. Railroad, 115 Mo. 165.” Thereupon the majority opinion concludes, to-wit: “Self, Special Judge, concurs: Cox, J., dissents as to that part ol the opinion revers ing and remanding the cause on the fourth count of the petition; and requests that the cause be certified to the Supreme Court, and it is so ordered. Gray, J., not sitting.” [Summers v. Keller,-152 Mo. App. 626, 646, 651.]
    As shown in the two opinions of the judges of the Springfield Court of Appeals, this cause was lodged there after a writ of error had been sued out in the Kansas -City Court of Appeals by the defendants in a judgment in favor of plaintiff in £be circuit court of Jasper county, by the transference of the cause to the Springfield Court of Appeals. It is shown by the record and briefs in the latter court that the three first counts of plaintiff’s petition were different statements of a cause of action for the alleged recovery by 'defendants of a certificate of deposit for $500; that the next three counts were for the values of a certificate of deposit for $300; and that the seventh count -was dismissed on the trial.
    Plaintiff prayed actual and punitive damages separately on both causes of action and alleged in each a proper basis for the recovery of both measures of relief. Plaintiff had judgment on the first cause of aetion for $507.50 actual, and $937.50 punitive, damages. On the second cause of action plaintiff recovered $314.50 as actual and $562.50 as exemplary damages.
    The first recovery was rendered on count number two of the petition and the second on count number four. So far as necessary the language and scope of these counts will be adverted to in the opinion. The cause is here under the above quoted order of tlie Springfield Court of Appeals, based upon the above quoted dissenting opinion of one of its judges and his request for its certification and transfer.
   OPINION.

I.'

BOND, J.

(After stating the facts as above). — Although no question is made by either of the counsel in this case as to the acquisition of jurisdiction of this court, it is not improper that we should determine that for ourselves before considering the merits of the writ of error by which the cause was taken to the Springfield Court of Appeals. By section six of the Amendment of the Constitution adopted in 1884, specific provision is made by that instrument for the certification and transfer of any case or proceeding pending in any court of appeals to this court, and in the event that method is complied with, this court acquires the same jurisdiction of such case or proceeding as if it had been rightfully brought here by appeal or writ of error from the trial court, and must rehear and determine it. To vest jurisdiction in this constitutional mode it is necessary: First, that the particular court of appeals where the case or proceeding is pending shall render a decision therein, not a mere ruling on a preliminary or interlocutory motion which is not decisive of the case (Gipson v. Powell, 167 Mo. 192); second, some one of tile judges of that court must state of record by adequate terms, that he deems the decisions of the majority of the court of appeals contrary to a previous decision of this court or some one of the courts of appeals; third, upon the filing of such a statement by one of its judges the court of appeals must, of its own motion pending’ the same term, certify and transfer said case or proceeding and the original transcript therein to the Supreme Court; fourth, this procedure was devised to prevent disharmony in the rulings of the appellate courts of this State and to enforce in all others the paramount authority, of the “last previous rulings of the Supreme Court on any question of law or equity.” [Ex parte Conrades, 185 Mo. 411.]

It has been uniformly held in this State since the adoption of this constitutional provision that this method of transfer of jurisdiction is accomplished solely by the statement of one of the judg’es of a court of appeals that he deems the ruling on which its judicial action is taken, to be contrary to the previous ruling of this court or some court of appeals. He is not required under the Constitution to employ any set or stereotyped terms to express that idea. It is only necessary that in some authentic way he declares his opinion of the contrariety of the court of appeals with a subsisting previous opinion of this court or some one of the courts of appeals. It does not at all affect the displacement of jurisdiction by this process that the judge so stating should be in error in his opinion or mistaken as to the fact. It is enough to oust the jurisdiction of the court of appeals in any case or proceeding for one of the judges' to say in proper words and of record that its decision of any case is in conflict with an unreversed ruling of this court or any one of the courts of appeals. [State ex rel. v. Philips, 96 Mo. 570; State ex rel. v. Smith, 107 Mo. l. c. 531; Clark v. M. K. & T. Ry. Co., 179 Mo. 66; Wilden v. McAllister. 178 Mo. 732; Rodgers v. Fire Ins. Co., 186 Mo. 248; Bradley v. Milwaukee Mech. Ins. Co., 163 Mo. 553, 559; State ex rel. v. Smith, 129 Mo. 585; Smith v. M. P. Ry Co., 143 Mo. l. c. 38,]

In the case at bar the dissenting judge stated of record that “to reverse” this case as his colleagues did “was in direct conflict” with two decisions (naming them) of this court. If there is any potency in words to convey the idea that he thought the decisions of his associates to be contrary to the decisions of this court, then the above terms did express that opinion on the part of the dissenting judge. He could not have expressed that thought more clearly nor distinctly if he had copied the language of the Constitution. It is idle to say that he should have used the word ‘ ‘ decision” instead of the words “to reverse” when speaking of the action of the court which he said was “in direct conflict” with the previous decisions of this court. To reverse a case is to decide it; and to speak of a reversal is to speak of a decision, for there can be no reversal without a decision ‘‘ to reverse. ’ ’ Hence, when Judge Cox stated that the reversal of this case was “in direct conflict” with two mentioned decisions of this court, he, in effect, stated in the clearest and most unequivocal form that the court of which he was a member had rendered a decision — the causa- causans of its reversal — which was ‘ ‘ in direct conflict ’ ’ with the rulings of the two cited cases in this court.

Neither is there any logical force or value in the suggestion that a “decision” is the judgment of a court and its “opinion” is the mere reason for its judgment. The words “decision” and “opinion” are used interchangeably in juridical literature and especially in many of the cases cited above where this provision of the Constitution was under review. By the use of the word “decision” the Constitution-makers plainly meant the opinions of the respective courts of appeals in conformity to which their judgment or decretal order was made. The Constitution was not concerned with the sums of money awarded to the plaintiff or other decretal orders of the courts further than these were the consequence of the principles of law and equity announced in the opinion or decision and upon which they were based. What the Constitution designed to prevent was repugnancy of rulings between courts of appeals or between them and the Supreme Court, and by “rulings” it meant expositions of the law or the legal reasons upon which the courts rested their judgment on the questions presented or the issues joined. To make these the same, the constitutional provision under review provided that the courts of appeals should have no right to decide a case when any judge of that body stated its decision or opinion, upon which it rendered a judgment, was contrary to a previous ruling of this court or any one of the courts of appeals. It was harmony of doctrine and adjudication which this clause of the Constitution was framed to safeguard, and that was the sole idea, object and extent of section six of the Amendment of the Constitution of 18,84. It was the legal antecedents of the judgments of the courts of appeals which the Constitution desired to control, so as to render the jurisprudence of this State a symmetrical and harmonious body of law for the administration of equal justice, measured by the same standards, in all the courts of the State.

In the instant case the cause has come before this court in full accord with the constitutional duty of the Springfield Court of Appeals to certify and transfer it here upon the statement of record of one of its judges that the opinion of his associates was “in direct conflict” with two decisions of this court, and we take jurisdiction of the entire cause. For, although the dissenting judge stated in substance that the action of his associates in reversing a part of plaintiff’s recovery was contrary to the decisions of this court, yet, it is shown by the record that both of plaintiff’s canses of action arose ont of the same transaction and as that transaction must come before us for review as to one of plaintiff’s causes of action it is onr duty to determine it with reference to all of the relief claimed by plaintiff. "When a cause is sent to this court under this provision of the Constitution it is not transferable by piece-meal, but under the very language of the Constitution this court is possessed of full jurisdiction, and “must rehear and determine said cause or proceeding, as in case of jurisdiction obtained by ordinary appellate process.” [Const. Am. 1884, sec. 6.] This makes this court the final arbiter of the cause just as if it had been properly appealed to this court after the judgment in the circuit court, and furnishes a salutary rule '■whereby an appeal or writ of error must be finally determined by one appellate court whose opinion will be the single guide for the trial court in any subsequent proceedings in the cause.

II.

This case was given careful consideration by the Springfield Court of Appeals as is shown by the full opinion written by Judge Nixon and concurred in by a special judge and the dissenting opinion of Judge Cox. The facts and issues are fully stated in the report of the case in 152 Mo. App. 626, and we will not restate them further than to show the grounds of our decision. The gravamen of plaintiff’s two causes of action was the recovery against defendants, who were charged to be fraudulent conspirators in the conversion of the amounts of two certificates of deposit for the respective sums of $500 and $300, which were issued to the plaintiff for money, which he had earned as a mine-worker, and deposited in two banks. The pith of plaintiff’s complaint is that one of the defendants became aware of his possession of the two certificates and. at once invited Mm to the drinMng saloon kept by the other, well knowing his weakness for drink and that he lost Ms senses when he yielded to it; that after plying him with drink he was enticed into a back room to gamble with the two defendants; that he was made very drnnk and Ms two certificates of deposit were taken from Ms coat pocket without any consideration and without his knowledge by the fraudulent schemes of the two defendants; that one of them thereafter indorsed plaintiff’s name on the backs of plaintiff’s certificates and received the money due upon them from the1 banks and did not deliver it to plaintiff.

The two counts (numbers 2 and 4) of plaintiff’s petition upon which plaintiff recovered judgment against defendants, alleged not only the elements for a recovery of actual damages, but also the elements of fraud, malice, oppression and conspiracy on the part of the defendants in perpetrating their joint schemes for obtaining plaintiff’s money as a basis for punitive damages. In the full and learned opinion of Judge Nixon, all the points insisted upon by the plaintiff in error relating to the judgment on the second count, were properly adjudged. This conclusion of the Springfield Court of Appeals affirming the verdict and judgment on that count of the petition is approved by us, though we do not approve of some of the views expressed in that opinion which, as we understand them, condition the right to recover exemplary damages upon a recovery of substantial actual damages. That is an inexact statement of the rule. Punitive damages may be recovered where a proper basis therefor is laid in the petition and proved, although the plaintiff recovers only nominal actual damages. [Ferguson v. Chronicle Pub. Co., 72 Mo. App. l. c. 466; 2 Sutherland on Damages, sec. 406; Lampert v. Drug Co., 238 Mo. l. c. 418.] In the latter case the learned opinion of Rot, C., reviewed fully the authorities in this State and elsewhere, and reaches the correct conelusion tliat ‘ a verdict for nominal actual damages will support a verdict for punitive damages.”

III.

But we do not concur in the disposition made by the majority opinion of the Springfield Court of Appeals of the recovery which defendant in error had under the fourth count of his petition. The substance of the allegations in that count of the petition, while charging the obtention of the $300 certificate by fraud, conspiracy and procuring the owner to become drunk and a party to a gambling game, did not impute to the' defendants the technical crime of larceny. The instruction given for defendant in error on that count properly hypothesized the conditions upon which he could recover actual damages, but it went beyond that and permitted the jury to find punitive damages if they believed the defendants had stolen the $300 certificate of deposit. That part of the instruction relative to punitive damages was not warranted by the particular averments of the fourth count of the petition upon which it was based and should not therefore have been given. But this error could not have prejudiced the plaintiffs in error except to the extent of permitting a recovery of punitive damages on grounds not pleaded in the fourth count of the petition. It did not in any way affect their liability for actual damages, as to which the jury was correctly instructed by instruction number two. The error in the portion of that instruction relating to punitive damages is entirely curable by exscinding from the verdict of the jury the award made by them of $562.50 as exemplary damages in their verdict on the fourth count of the petition. In all other respects we hold (as all the members of the Springfield Court of Appeals), that defendant in error is entitled to an affirmance of the judgment recovered by him in the circuit court. If, therefore, the defendant in error will within the next ten days enter a remittitur of $562.50 of the judgment rendered in his favor in the trial conrt, the remainder of that judgment will be affirmed, otherwise this cause will be reversed and remanded for a new trial.

All concur.


source: Caselaw Access Project

author: BROWN, C. PER CURIAM.

license: Public Domain

text:
    VIRGINIA G. FARRIS et al. v. F. B. BURCHARD et al., Appellants.
    Division One,
    December 2, 1914.
    PROBATE OF WILL: Not Entered of Record: Order Made After Many Years: Evidence. The Revised Statutes of 1855 provided that the cleric of the county court should take the proof of wills in vacation, subject to confirmation or rejection by the court, and that when any will was exhibited, the clerk might receive the proof and grant a certificate of probate or of rejection. In 1865 a will was presented, and the proof of the subscribing witnesses was written, signed, and certified upon the will itself, which was then filed but not recorded. The court, when it met in term, made an order appointing an administrator c. t. a. This suit to quiet title having arisen long afterward, involving the provisions of the will, it was held on a former appeal that the proof did not justify the conclusion that the will had been probated. Accordingly the probate court, in 1912, ratified the proceedings of the county clerk,, adjudged the instrument proved and ordered it admitted of record. The order and judgment were copied upon the will and signed by the judge. Held, that the instrument was thereafter, in the retrial of the suit to quiet title, properly received in evidence as the last will and testament of its signer, and that under it the plaintiffs are entitled to their interests as remaindermen.
    Appeal from Gasconade Circuit Court, — Hon. John W. Booth, Judge.
    Affirmed.

      August Meyer,-C. G. Baxter and Robert Walker for appellants.

      J. W. Hensley for respondents.
   BROWN, C.

This case' is founded upon section 650 of the Revised Statutes of 1899. It was instituted in the circuit court for Gasconade county December 23, 1907, and has been once before to this court upon the appeal of defendants from a judgment in favor of the plaintiffs, which was reversed and the cause remanded for a new trial. [Farris v. Burchard, 242 Mo. 1.] The question in that appeal was whether, upon the records of the probate court for that county as they then appeared, the will of James Johnson under which the plaintiffs claim their title to an undivided fourth of the land involved, was shown to have been admitted to probate. The opinion of this court in rendering its judgment concluded as follows:

“Whether the parties interested could now present the will for probate, or whether the record is in such a condition as would entitle them now to a judgment mmc pro tunc, we express no opinion, because there is no such case before us; hut we do feel constrained to say that the proof adduced did not justify the conclusion that the will had been duly probated, and therefore did not justify the judgment that the respondents were entitled to the interest in the land-which the judgment gives them. The judgment is therefore reversed and the cause remanded for a new trial. ’ ’

Upon the return of the cause to the circuit court the plaintiff Samuel Matthews appeared in the probate court and by written petition stated that he was a devisee in the will as well as heir at law of James Johnson, deceased, who died in 1864 leaving said will, which was on — day of-, 1865, produced in the county court of Gasconade county, Missouri, having at the time probate jurisdiction, and the testimony of the subscribing witnesses thereof was duly and formally taken by the clerk of the court in vacation and indorsed, with his certificate thereto, on the hack of said will; that said will has since remained in the custody of the probate court, although no formal judgment of probate has been entered of record by said court, and prayed that an entry of formal judgment of probate be entered on the records of said court upon such proof. The defendant Burchard appeared, filed objections in writing, and opposed the entry of such judgment, but the court, at its August term, 1912, after reciting all the facts upon its record, ordered and adjudged that the instrument be considered proved, and adjudged the same to be the last will of said James Johnson, deceased, and ratified and confirmed the proceedings' of the clerk and ordered the will to be admitted of record. A similar order and judgment was then written out and signed by the judge on said will, and it was recorded by the clerk.' It also appeared upon the records of the county court that in 1865, after the presentation and proof of the will before the county clerk, Peter W. Burchard was by order of the court duly appointed administrator with the will annexed of the estate of James Johnson, deceased, and was required to give bond as such administrator in the sum of $15,000; and that he thereupon filed such bond which was by the court approved. The administration of the estate continued from the time of his appointment in 1865 until some time in 1869-. The will with the proof and certificates thereon was recorded in the office of the recorder of deeds for Gasconade county on March 29, 1913. . The admission of the will in evidence with these record entries constitutes the error relied on by appellant.

The paragraph in the will under, which the plaintiffs claim title to an undivided fourth of the land as the only children of the testator’s daughter Mary Elizabeth, who was married to one N. G. Matthews, their father, is as follows:

“I give and bequeath, all my estate to the use of my wife during- her natural life; at her death my estate, or one-fourth of it, to my daughter, Mary Jane; one-fourth to my daughter Susan Ann; one-fourth to my daughter Eliza Virginia; the remaining fourth to my daughter Mary Elizabeth and her bodily heirs, her husband having no control over the same. The income from the one-fourth part of my estate devised to my daughter, Mary Elizabeth,- she can have the use of during her natural life, and at her death to go to her bodily heirs, but if she should die without bodily heirs, it is to be divided equally among the bodily heirs of my three daughters above named, viz.: Martha Jane Johnson, Susan Ann Johnson and Eliza Virginia Johnson.”

Martha Jane afterward married one Benjamin P. Richardson, Susan Ann married one Perry A. Richardson,' and Elizabeth Virginia married one J. W.. Cantley. Mrs. Matthews was alive when this suit was instituted but has since died.

The defendant Burchard claims through deeds as follows: (1) deed dated March 1, 1877, from Mrs. Matthews and husband, Mrs. Cantley and husband, and Mrs. B. P. Richardson and husband to Perry A. Richardson for $150; (2) deed from Perry A. Richardson and wife to Green C. Richardson, dated August 16, 1880, and filed for record May 16, 1908, in which no consideration is expressed; (3) deed from Green C. Richardson and wife to Fred B. Burchard, dated February 28, 1884, and recorded August 12, 1884. While a consideration of $15,000 is expressed in this deed it was an advancement to the wife of defendant, who was the grantor’s daughter.

It was agreed on the trial as follows: ‘ ‘ That defendant’s father-in-law Green C. Richardson was a purchaser for value of the lands described in plaintiff’s petition.” The record shows that the oldest child of Mrs. Matthews, the plaintiff Virginia Farris, was born in 1868.

I. The cause was reversed, in the former appeal on the sole ground that the proof adduced at the former trial did not justify the conclusion that the will of Johnson had been duly probated, and therefore did not justify the judgment that the plaintiffs were entitled to the interest in the land which it gave them. It only remains for us to determine whether or not at the last trial the evidential deficiency was supplied. It consisted solely of the absence of a formal judgment of the county court then having jurisdiction in such matters, or of the probate court which succeeded to that jurisdiction, declaring that it and been proven, or, to use a more common expression, admitting it to probate. This court declined to express an opinion as to whether or not the parties in interest could still present the will for probate, or, depending upon the record as it then stood, have judgment entered mmc pro tunc to that effect.. The cause was remanded that the parties might proceed upon the theory so suggested, and whether the plaintiffs have now succeeded in establishing the probate of the will is the sole question before us.

II. We are not confronted with any question of laches, or failure on the part of the plaintiffs to do everything in their power to protect their own interests, for if they have lost their rights under the will it is on account of neglect of duty on the part of those charged by law with their protection, beginning before the oldest of them was born and continuing until the wrong was consummated. Nor have they neglected to avail themselves in good time of the remedy which was given them as contingent remaindermen by the Act of 1897 (R. S. 1899, sec. 650), by suing while the youngest still lacked two years of his majority, and while the mother, the life tenant) was still living. On the other hand, there is no question of wrong to an innocent purchaser. While it is stipulated that one of those through whom the title asserted by defendant has passed was a purchaser for value of the lands described in the petition, there is nothing in the record to indicate how much he paid (his deed being silent on that question), or what he knew or did not know. In short, we find nothing in the record inconsistent with the theory that upon the death of the grandmother of plaintiffs, who had under the will a life interest in all the estate both real and personal, the surviving family determined to make the four husbands, who had then become members of it, equal,' and quietly suppressed the will, and relegated it to ‘ ‘ an old glass cupboard, amongst some school blanks and old letters and other things cast aside ... as being apparently of no value.” It seems to have been a family by which husbands were appreciated, for the title was gathered in one of them, -Perry A. Richardson, before being conveyed to Green C. Richardson, and the latter conveyed it to his defendant son-in-law as a gift to his daughter. The Matthews children, to whom Mr. Johnson had done everything in his power to secure their mother’s share in his estate, were ignored.

III. Coming to the real -question, whether the judgment admitting the will to probate entered in 1912 after this cause was sent down to the circuit court for retrial entitles it to be admitted as evidence of plaintiffs’ title, we will first consider the statutes regulating the duties of the probate courts in such matters, by which these records must be judged. In doing this we will refer to the Revision of 1855, in force at the time. Section 14, p. 1569, is as follows: “The county court, or clerk thereof in vacation, subject to the confirmation or rejection by the court, shall take proof of last wills.”' Section 16 provides: “When any will is ex-liibited to be proven, tbe court or clerk may immediately receive tbe proof, and grant a certificate of probate, or, if sucb will be rejected, grant a certificate of rejection.” Tbe measure of proof required from tbe subscribing witnesses is tbat tbe testator signed tbe writing as bis last will, tbat be was of sound mind, and tbat they respectively subscribed their names thereto in bis presence. This must be reduced to writing, signed by tbe witnesses and certified by the clerk (secs. 18, 21). All this was done and tbe proof of tbe will was complete, subject only to tbe .confirmation of tbe court in term; so tbat tbe controversy is reduced to tbe question as to whether this confirmation was shown by tbe record introduced in the last trial, for unless sucb confirmation appears in tbe record tbe will is not properly before tbe court and tbe plaintiffs bave failed to show any title.

There is no question but tbat upon taking tbe proof of tbe will as shown by bis certificate in evidence, tbe clerk could bave immediately issued in vacation, subject to tbe confirmation or rejection of tbe court, letters of administration with tbe will annexed under tbe first section of tbe act relating to tbe appointment and removal of executors and administrators. [R. S. 1855, p. 113.] It was not necessary tbat tbe will should bave been recorded. Its record required no order of tbe court, but rested solely with tbe clerk, upon whom tbe statute imposed tbe duty. [Sec. 26, p. 1571.] It was required by tbe section last cited to be done within thirty days after probate, and is coupled in tbe same section with tbe other clerical duty to carefully file tbe original in bis office. We can see no reason why fbe failure to perform either of these duties should bave any more or different effect upon tbe validity of tbe proof already made than would attend sucb failure in case of tbe other.

While tbe clerk bad tbe right to issue letters founded upon tbe probate of tbe will in vacation, be did not do so, and when the court met in term it made an order appointing Burchard administrator of the estate with the will annexed. That the jurisdiction to make this order was derived from the probate of the will is evident. If the confirmation by the court of the act of the county clerk in taking and certifying the proof was necessary to its validity, it was confirmed by this appointment, which can rest on no other foundation than the will. It stands upon the same footing as would the act of the clerk in issuing ordinary letters of administration in vacation “subject to the confirmation or rejection of the court” under the first section of the administration act. If, in such a case, the act of the clerk should not be confirmed in express terms, but the administration should proceed under the direction of the court to final settlement, it would seem technical to the point of rashness to say that all the proceedings would be void, and afford no protection to the actors because the failure of the court to enter a formal order of “confirmation” had been equivalent to the rejection of the clerk’s appointment. The same words are used with reference to the probate of wills by the clerk in vacation, and the same reason exists why it should continue in effect until rejected by the court. [Potter v. Adams’ Executors, 24 Mo. 159, 163.] When the administrator was appointed and had given bond it became his duty (sec. 16, p. 115) to “faithfully execute the last will of the testator, pay the debts and legacies, as far as the assets will extend and the law directs.” We will presume, in the absence from the record of anything to the contrary, that during the entire period of the administration he faithfully performed these duties, and although the personal estate must have been considerable, as indicated by the amount of the bond exacted from him, that he delivered it all, after the payment of the debts, to the widow, the sole legatee. This having been done, we see no reason why, -upon the death of the widow, the estate should be diverted from the testamentary channel.

IV. This will has, during all the time that has elapsed since it was presented to the clerk of the county court for probate soon after the death of the testator, been in the custody provided by law for that purpose. So far from evidence having been lost or its production impeded or embarrassed, the very testimony which the law has prescribed as the best evidence of its execution has been perpetuated and certified in such form that it cannot be separated from the instrument. So far as its having been concealed or kept from the notice of those interested, it will be presumed that they were given the opportunity to execute its provisions. [R. S. 1855, p. 114, sec. 10.] Under these circumstances we have no doubt of the power of the court to enter a judgment in form confirming the act of the clerk and establishing the will as it did at its August term, 1912. No Statute of Limitations applies to and bars the right of the court to put in proper form at any time that which appears from its records to have been done and to have been imperfectly' or informally recorded. [Martin v. Brown, 162 Mo. App. 223, 228; Dawson v. Waldheim, 89 Mo. App. 245; Hansbrough v. Fudge, 80 Mo. 307; Smith v. Steel, 81 Mo. 455.] The same rule ordinarily applies to those cases in which nothing remains for the court to do but to enter the particular judgment which the law prescribes upon the facts appearing in its record. In this case both these conditions exist. The statutory evidence is taken .and-certified to the court without any word or fact tending to impair its statutory effect. The statutory judgment was then due without any further proceeding. The matter was still pending for that purpose. It was not formally entered, but the court did make an order which confirmed the probate of the will by adopting and acting upon it, and we have no doubt that the clerk might and should have then entered on his minutes words equivalent to the statement that the probate of the will ivas confirmed and Peter W. Burchard appointed administrator with the will annexed of the estate. This ease in its facts illustrates the two classes of cases which mark the distinction between the power of the court upon notice and with due regard for intervening rights to pronounce and enter the judgment of the law upon the facts which should conclude a pending proceeding,, notwithstanding it may have been delayed beyond the usual time for doing so, and its power to scan its record to ascertain from it what judgment it has pronounced and to correct any failure of the clerk to properly enter it. In this particular case a judgment of probate entered upon either theory must, from its nature, relate not only to the date of the pronouncement but to the date of the death of the testator, so as to prevent a hiatus in the title to the property of which it disposes. Even the appointment of the administrator necessarily relates to the same period. [3 Redfield on Wills (3 Ed.), 46.] For this reason it make no difference in its effect whether we call it an original judgment or a judgment nunc pro time under the classification we have suggested. It clearly falls, however, within the latter class. [Hansbrough v. Fudge, supra; Smith v. Steel, supra.]

It follows from what we have said that the judgment of August 26, 1912, probating the will under which the plaintiff claim was properly admitted in evidence, and the judgment of the circuit court is affirmed.

Blair, G., concurs.

PER CURIAM.

The f oregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.


author: WOODSON, P. J.

text:
    W. L. TOLER and MARY L. TOLER, Appellants, v. JAMES A. JUDD et al.
    Division One,
    December 2, 1914.
    FRAUD: Suit to Recover Decedent's Personal Property: Cannot Be Maintained By Heirs. The heirs of decedent, so long as his widow is administratrix, cannot maintain suit to recover the value of a stock of merchandise out of which he was fraudulently cheated by defendants — not even by joining the administratrix, on her refusal to sue, as a defendant.’ Such suit can only be maintained by the administratrix as plaintiff; and if she refuses to sue, the remedy of the heirs is to sue on her bond, or to bring proceedings in the probate court to have her removed as administratrix and another appointed in her stead.
    Appeal from Macon Circuit Court. — Hon. Nat. M. Shelton, Judge.
    Affirmed.

      Weatherby & Frank and Higbee & Mills for appellants.
    The court erred in sustaining the demurrer to plaintiffs’ petition. It states a good cause of action in equity. Plaintiffs are the equitable owners of the stock of merchandise, subject to the widow’s rights therein, and on her neglect or refusal to sue, or join in this action, are entitled to the relief prayed in the petition ; and upon the annulment of the exchange are entitled to have the value of the stock of merchandise paid over to the administratrix as assets of the estate. Ford v. Hennessy, 70 Mo. 593; Story’s Eq. Plead., sec. 170; Richardson v. Cole, 160 Mo. 372; Trotter v. Mutual Reserve Assn., 70 N. "W. 843; Bern v. Shoemaker, 74 N. W. 239; Buchanan v. Buchanan, 22 L. R. A. (N. S.) 461; Samuel v. Marshall, 3 Leigh, 567; Padgett v. Smith, 206 Mo. 309.

      E. G. Lockwood and J. W. Peery for respondents.
    (1) The legal title to the personal estate of a decedent vests in his administrator. The heir can acquire no title thereto except through an administration in the probate court, and therefore has no right to maintain an action with respect to the personal estate. Leaky v. Maupin, 10 Mo. 368; State to use v. Fulton, 35 Mo. 323; Smith v. Denny, 37 Mo. 20; Yastine v. Dinan, 42 Mo. 269; State ex rel. v. Moore, 18 Mo. App. 406; Becraft v. Lewis, 41 Mo. App. 546; Heilman v. Wellenkamp, 71 Mo. 407; Pullis v. Pullis, 178 Mo. 683; Brueggeman v. Jurgenson, 24 Mo. 87; Griesel v. Jones, 123 Mo. App. 45; Orchard v. Store Co., 225 Mo. 414; Hillman v. Schwenk, 68 Mich. 297; Bourget v. Monroe, 58 Mich. 566; Hanenkamp’s Admr. v. Borgmier, 32 Mo. 569. (2) If an administrator, in a proper case refuses to bring an action for the recovery of the personal property belonging to the estate, the remedy of the heir is either to sue him upon his bond, or to institute proceedings in the probate court to have him removed and another appointed in his stead. R. S. 1909, secs. 34, 50; Heilman v. Wellenkamp, 71 Mo. 407; Pullis v. Pullis, 178 Mo. 683; Hillman v. Schwenk, 68 Mich. 300; Flynn v. Flynn, 183 Mass. 365; Pritchard v. Norwood, 155 Mass. 539; Putney v. Fletcher, 148 Mass. 247; Scruggs v. Scruggs, 105 Fed. 28; Moore v. Fidelity Co., 138 Fed. 1; 2 Woerner’s Am. L. Adm. (2 Ed.), p. 674, sec. 322; Butler v. Roer, 163 Mo. App. 287; Morrow v. Morrow, 113 Mo. App. 444.
   WOODSON, P. J.

This is a bill in equity, instituted by the plaintiffs against the defendants in the circuit court of Macon county, to set aside and cancel a certain contract made and entered into by and between one E. F. Toler and James A. Judd, by which the former traded á certain stock of goods at Me-Fall, Missouri, to the latter for certain real estate, and other considerations, located in Macon county.

Ther-e was a demurrer filed to the bill, which was by the circuit court sustained, and the plaintiffs declining to plead further judgment was duly rendered against them. In due time and in proper form the plaintiffs appealed to this court.-

This state of the record requires this court to pass upon the sufficiency of the bill, and the demurrer filed thereto. The bill is as follows:'

"Plaintiffs for- their cause of action state that on and prior to January 31, 1910, one E. F. Toler was the owner of a general stock of merchandise of the value of $16,500, then located and situated in a certain store building occupied by him in the town of McFall, in Gentry county, Missouri; that the defendant Judd was then the owner in fee of certain lands located in Macon county, Missouri, to-wit:
"Fifteen acres off the south end of the west half of the northwest quarter; and the east half of the.' northwest quarter, and the west half of the northeast quarter, and the southeast quarter of the northeast quarter, and the north half of the southeast quarter, all in section 6, township- 57, range 17, containing 295 acres more or less, subject to certain deeds of trust aggregating about $4000 principal; that said lands were then not worth to exceed $25 per acre, or $7375 in the aggregate, and the said Judd’s equity of redemption therein was not worth to exceed $3375; that the said E. F. Toler was then, and for a long time prior thereto had been, broken down in health, physically and mentally weak, of unsound mind, incapable of transacting business, easily susceptible to persuasion, influence and suggestions, and in constant fear and dread of death, and suffering from a mortal illness, as the defendants and'each of them then well knew.
"Plaintiffs further -state that the defendant, J ames A. J udd, well knowing the said condition of the said E. P. Toler physically and mentally, with the intention, design and purpose to fraudulently cheat and defraud the said E. P. Toler out of his said stock of merchandise, did falsely and fraudulently represent to the said E. P. Toler that the said lands of the said James A. Judd were of the value of $60 per acre, and with the fraudulent purpose aforesaid, proposed to the said E. P. Toler that he would sell and exchange his equity in said lands in Macon county, Missouri, at the valuation of $13,700i, taking the said Toler’s stock of goods in exchange therefor at the valuation of $16,500, and would settle the difference in favor of said Toler of $2800 in certain notes that said Judd then held on persons living on or in the neighborhood of said lands in Macon county,' Missouri, which said Judd falsely and fraudulently represented to said Toler were good, solvent and collectible notes.
“Plaintiffs further state that said E. P. Toler was not acquainted with the said lands of the said Judd in Macon county, Missouri, and was wholly ignorant of the value of said land, and was wholly ignorant' of whether the said notes for the said sum of $2800 were solvent and collectible, all of which the defendant Judd then well knew, and the said Judd importuned and constrained the said E. P. Toler to make said exchange of said stock of goods for the said lands in Macon county, Missouri, and the said $2800 in notes, the said E. P. Toler being wholly unable to resist the importunities, persuasions and constraint of the said Judd for that purpose, as the said Judd then well knew, and said Toler wholly relying upon the said representations of the said Judd, and being unable .to resist his importunities and persuasions, was induced thereby to sell and deliver to the said Judd his said stock of goods in exchange for said lands and said notes for $2800, and did on January 31, 1910, so wholly relying upon said representations of the said Judd, and being so fraudu lently influenced by the said Judd, as aforesaid, sell and deliver to him his said stock of goods, and received in exchange therefor, a deed from the said James A. Jhdd and his wife conveying said lands to him, the said E. F. Toler, and Ida E. Toler, the defendant, his wife, subject to four certain deeds of trust upon said lands to secure the payment of four several notes therein described, aggregating the sum of $4000’ principal, the said Judd then assigning and transferring without recourse to the said B. F. Toler and Ida E. Toler, his wife, said notes aggregating the said sum of $2800; and plaintiffs aver that the said representations of the said James A. Judd were wholly false; that said lands were not worth to exceed $25 per acre, and the equity of redemption of the said James A. Judd therein was not worth to exceed $3375, and the said notes for the sum of $2800 were not collectible, and the makers thereof were insolvent.
“Plaintiffs further state that they do not know and are unable to state the names of the makers of said notes.
“Plaintiffs further state that immediately upon effecting said exchange, the defendant James A. Judd, took possession of the said entire stock of goods so owned by said E. F. Toler, and removed the same from said town of McFall and has converted the same to his own use.
“Plaintiffs further state that the said E. F. Toler, of the said illness of which he was then suffering, as aforesaid, died on or about March 1, 1910, intestate and without issue, being at the time of his death a resident of Gentry county, Missouri, and left surviving him his widow, the defendant Ida E. Toler, and the plaintiff W. L. Toler, his brother, and Mary J., his mother, his only surviving heirs; that the father of E. F. Toler had theretofore died, and that said E. F. Toler had no sisters or brothers, or their descendants surviving him. other than his brother "W. L. Toler.
“Plaintiffs further state that immediately upon the death of said.E. F. Toler, the defendant Ida E. Toler, took out letters of administration and was appointed administratrix of the estate of E. F. Toler, by the probate court of Gentry county, Missouri, and duly qualified, and has ever since been, and now is acting as such administratrix; that plaintiffs have requested the said Ida E. Toler to join with them in this action; and have been unable to obtain her consent, and she has refused to join with them in this action, either individually or as administratrix of the estate of E. F. Toler, deceased, and they have for that reason made her a co-defendant in this action, individually and as administratrix of the estate of said E. F. Toler, deceased.
“Plaintiffs further state that they are willing, and now offer, to convey to the said James A. Judd any interest that might or would pass to them in the lands above described by reason of said conveyance of the said James A. Judd and his wife to the said E. F. Toler and Ida E. Toler, and are willing to transfer to said James A. Judd any interest they may or might hasve in said notes for $2800, and they pray that said sale and exchange of said stock of goods so owned by said E. F. Toler for the said lands in Macon county, Missouri, and said notes for $2800 be cancelled and set aside, and for naught held, and that the said defendant, James A. Judd, be required to account for and to pay over to the administratrix of the estate of the said E. F. Toler, the said sum of $16,500, the value of said stock of goods so owned by the said E. F. Toler, and that judgment be rendered in favor of Ida E. Toler, as administratrix of the estate of E. F. Toler, deceased, for the sum of $16,500 with interest and costs of suit, and that she be required to return to the said James A. Judd the said notes for $2800, and to reconvey to said Judd said lands in Macon county, Missouri, and for other proper relief.”

The demurrer was as follows:

“Now come the defendants and demur to the petition of plaintiffs filed herein, and assign the.following grounds of demurrer, to-wit:
“First, because said petition fails to state facts sufficient to constitute a cause of action.
“Second, because said petition fails to state facts sufficient to constitute a cause of action in favor of the plaintiffs and against the defendants.
“Third, because said petition shows upon its face that plaintiffs have no legal capacity to sue herein.
“Fourth,'that there is a defect of parties plaintiff, in that under the allegations of the petition, the administratrix or administrator of the estate of said E. F. Toler, deceased, is a necessary party plaintiff to this action.
“Fifth, because there is an improper joinder of parties plaintiff in that said W. L. Toler and Mary J. Toler have no right or authority to maintain this action, and are improper parties plaintiff herein;
“Sixth, because said petition shows upon its face that the cause and right of action, if any exists, is in the administratrix of the estate of E. F. Toler, deceased, and the remedy of the plaintiffs, if any they have, must be pursued in an entirely different proceeding from that sought to be maintained in this action.
“Seventh, because said petition, in effect, attempts to divest the defendant, Ida E. Toler, of her title to the real estate therein mentioned, and the same fails to allege any fact or facts, showing, or tending to show, that the said Ida E. Toler participated in any pretended or alleged fraud claimed to have been perpetrated upon the said E. F. Toler, deceased, in the sale of said stock of merchandise, or the conveyance of the real estate in said petition described.
“Eighth, because said petition fails to state the specific facts and acts of the defendant Judd which it is claimed constituted fraud or undue influence, and fails to state any specific facts amounting in law to fraud sufficient to justify the rescission of said contract of sale.
“Ninth, because said petition fails to allege that the said E. F. Toler did not see or examine the real estate mentioned in said petition, and fails to allege that he did not investigate the solvency of the makers of the notes therein mentioned; or that he was prevented from making such examination of such land; or such investigation of the solvency of the makers of said notes, by any act or conduct on the part of the defendant Judd.”

I. It will be observed by reading this bill that it states that E. F. Toler and Ida E. Toler, at the time of the execution of the contract mentioned, were husband and wife; that after its execution the husband, E. F. Toler, died intestate, leaving surviving him his widow; Ida E. Toler; his mother, Mary J. Toler and a brother, W. F. Toler, as his only heirs at law; that Ida E. Toler was the duly appointed and 'acting ad.ministratrix of her deceased husband’s estate.

Upon that state of facts counsel for defendants contend, among other things, that since the object of the suit was to annul the contract and recover back the stock of merchandise, which of course was personal property, it could not be maintained by the plaintiffs, although it being admitted by the demurrer, that they were heirs of the deceased, for the reason that the title to personal property of a deceased person vests in his administrator, and that the heir can acquire no title thereto except through an administration of the estate through the probate court, which has not been done, rather completed, in.this case.

The following authorities cited by counsel for defendants fully sustain this contention, viz.: Leakey v. Maupin, 10 Mo. 368; State to use v. Fulton, 35 Mo. 323; Smith v. Denny, 37 Mo. 20; Vastine v. Dinan, 42 Mo. 269; State ex rel. v. Moore, 18 Mo. App. 406; Becraft v. Lewis, 41 Mo. App. 546; Hellman v. Wellenkamp, 71 Mo. 407; Pullis v. Pullis, 178 Mo. 683; Brueggeman v. Jurgensen, 24 Mo. 87; Griesel v. Jones, 123 Mo. App. 45; Orchard v. Store Co., 225 Mo. 414; Hillman v. Schwenk, 68 Mich. 297; Bourget v. Monroe, 58 Mich. l. c. 566; Hanenkamp’s Admr. v. Borgmier, 32 Mo. 569.

We, however, do not understand that counsel for plaintiffs controvert the conclusion previously announced, but seek to evade the effect thereof by saying that, because they are heirs of the deceased Toler, and therefore the equitable owners of the stock of goods, subject to the widow’s marital rights therein, and her neglect or refusal to sue or join them in the suit, entitled them to institute and maintain this action against her individually and as administratrix, as well as the other defendants.

This position of counsel for plaintiffs is untenable, for the reason that this court has repeatedly held that if an administrator, in a proper case, refused to bring an action for the recovery of personal property belonging to the estate, the remedy of the heir is either by a suit on his bond, or to institute proper proceedings in'the probate court to have him removed from office, and have another appointed in his stead. Among such cases are the following: Hellman v. Wellenkamp, 71 Mo. 407; Pullis v. Pullis, 178 Mo. 683; Hillman v. Schwenk, 68 Mich. l. c. 300; Flynn v. Flynn, 183 Mass. 365; Pritchard v. Norwood, 155 Mass. 539; Putney v. Fletcher, 148 Mass. 247; Scruggs v. Scruggs, 105 Fed. 28; Moore v. Fidelity Trust Co., 138 Fed. 1; 2 Woerner’s Am. L. Adm. (2 Ed.), p. 674, sec. 322; Butler v. Roer, 163 Mo. App. 283, l. c. 287-288.

The cases cited by counsel for plaintiffs are not in point. They are cases where the beneficiary has in certain cases been permitted to sue where the trustees, officers and directors of corporations, etc., have declined to sue; but they are based upon the ground that those beneficiaries, stockholders, etc., have no other remedy. The books are full of such cases, and the doctrine therein announced is so familiar to the bench and bar it would be useless to cite them. But the case at bar is not embraced in that class, for the reason that the law affords the plaintiffs ample remedy, as is shown by the authorities last cited.

We are, therefore, of the opinion-that the judgment of the circuit court should be affirmed; and it is so ordered.

All concur.


author: GRAVES, J. LAMM, J.

text:
    B. L. LYMAN v. HORACE DALE, Appellant.
    Division One,
    December 2, 1914.
    1. NEGLIGENCE: Pleading In Justice Court. If a plaintiff elects to plead Ms cause of action brought in a justice of the peace court, he is bound by the allegations of his statement filed therein the same as he would be by the allegations of a petition filed in the circuit court. For instance, if he sues in tort, and specifically states the negligence on which he relies to recover, he must recover for that negligence and none other.
    2. -: Allegation and Proof: Wild Mule. Where plaintiff charges that defendant was guilty of negligence in handling a “wild and unruly mule,” which, as it was being led along a public street, ran into his buggy and broke down a wheel thereof, he cannot recover damages unless he proves that the mule was “wild and unruly.”

      Belli, by LAMM, J., concurring, that, there being no evidence tending to show the mule was “wild and unruly,” such a mule is not per se a nuisance, a vicious animal, so that when led by a halter, his owner must answer for damage done by his hind foot to the wheel of a passing buggy, or other acts.
    3. NEGLIGENCE: Leading Mule Upon Public Street: Five-Foot Rein. The leading of a mule upon a public street, with a halter rein five or six feet long, is not negligence, unless some vicious propensity of the animal be pleaded and shown; and the court should so declare as a matter of law.

      Held, by LA.MM, J., concurring, that it is not- negligence to ride one mule and lead another along a public street unless they are halter-yolted “neck and neck;” and especially in this case, because the injury to plaintiff’s buggy was caused by the mule’s hind leg getting into the wheel and there is no causal' connection between the injury to the wheel caused by the hind leg and the failure to halter the mules neck and neck.
    4. --: -: -: Expert Testimony. Experts are not competent to testify that the proper way for handling mules being led along a public street is to halter .them closely together. The matter is not one of expert exposition.
    5. -: -: -: -: No Objection. Where the question is not one calling for opinion evidence the case is not changed on appeal by the fact that expert testimony was admitted without objection.
    Appeal from Greene Circuit. Court. — Hon. James T. Neville, Judge.
    Reversed.

      W. D. Hubbard and J. T. White for appellant.
    The court erred in overruling defendant’s demurrer to the evidence: (1) The negligence alleged was leading “a wild and unruly mule” in a “careless and negligent manner. ’ ’ There was a total failure of proof. The mule was quite gentle. A careless manner of leading a gentle mule is not alleged. In order to recover plaintiff was obliged to prove that the mule was wild and that defendant knew it. Cathorn v. Walsh, 7 Mo. App. 588; O’Neil v. Blase, 94 Mo. App. 662. It is not alleged that defendant knew the mule was wild or unruly, and hence no cause of action is stated. (2) There is no evidence of negligence whatever sufficient to make out a case, even if the petition had been in accordance with the facts, (a) There is no evidence that leading a gentle mule, holding the halter rope by hand is negligence. Common sense teaches that it is not. One on first thought would not think of leading a Missouri mule in any other way. Of course, it might occur to one that “wild and unruly mules” should be necked together, (b) It is certainly not a negligent act to lead a mule by a five-foot rope. That is as close as one desires to get to this same' Missouri mule. (3) Leading the mule in the manner complained of was not the proximate cause of the accident. The obstrnc-. tion in the street'caused the innle to shy. The length of the rope would not prevent the mule from breaking-loose. The obstructions were the proximate cause. Hodges v. Railroad, 135 Mo. App. 683; Lawrence v. Ice Co., 119 Mo. App. 327; Bokamp v. Railroad, 123 Mo. App. 270; Haley v. Railroad, 179 Mo. 35; Saxton ' v. Railroad, 98 Mo. App. 494.

      Roscoe Patterson for respondent.
   GRAVES, J.

This case involves the magnificent sum of five dollars. It reaches ns under a certification from the Springfield Court of Appeals. We are enlightened by three well written opinions from the three respective members of that court. The facts we shall state for ourselves. Plaintiff having had one wheel of an old buggy somewhat demolished by coming in contact with a mule belonging- to defendant, but being led by an employee of defendant, sought damages therefor before a justice of the peace, in October, 1909. He thus challenges his enemy in an amended petition filed before such justice:

“Plaintiff for an amended petition states that on the 2d day of October, 1909, at the county and State of Missouri, he was driving* a horse and buggy along Walnut street, between South and Jefferson streets, in the city of Spring-field, on the right hand side of the street; that defendant’s agent and employee, on the aforesaid date, was leading a wild and unruly mule along the aforesaid street in such a careless and negligent manner as to permit said mnle to ran into and against plaintiff’s said buggy, thereby injuring and breaking the wheel and axle of said buggy and damaging the same to the extent of five dollars.
“Plaintiff further states, that at the time of the accident aforesaid, defendant’s agent and employee leading said mule was acting in the scope of his employment.
“Wherefore plaintiff prays judgment in the sum of five dollars.”

As we gather the facts plaintiff has been successful throughout from the justice’s court up to the present. In the Court of Appeals his success was by a divided court. In this court he stands behind the fortification erected by his judgment, and submits his case here without brief. A yellow slip of paper found in the files here bears the ominous inscription, “The Celebrated Mule Case,” and nothing more. Why we were thus enlightened by this otherwise silent monitor we know not. It at least admonishes to look well to the facts. Plaintiff and his brother and father-in-law were driving east on Walnut street in Springfield, Missouri, in plaintiff’s buggy, and at a point where there was some digging in the street and some brick piled up in the street, met defendant’s employee, James S. Parker, who was riding one mule and leading another; both mules were of good size, and the one being led was gray in color, if the color is material. According to plaintiff’s evidence the halter strap by which the mule was led was five or six feet long — two witnesses say five, and another says five or six feet. It was being held near the end. In passing the bricks the mule shied across to the buggy and got his hind leg between the shaft and the wheel and in extricating itself damaged the wheel. Plaintiff’s theory of the case is made to appear by the following evidence. Plaintiff himself says:

“Q. Do you know the customary manner of managing mules when they are being led over the street? A. I don’t know what lots of people do, but I know what I do with them. I would neck them together so they could not spread all over the street.
“Q. How would be a proper way to handle them? A. That would be a proper way to handle them I think, would be to neck them together when you go through a crowded place like that.
“Q. How was he leading this mule? A. At the end of the halter rope.
“Q. How long was that rope? A. About five feet, the best .1 could tell. ’ ’
The brother said:
“Q. Tell the court the proper manner to handle them? A. In a place, where you are likely to have any difficulty with mules you neck them right up short together.
‘ ‘ Q. Can they be handled at all by giving five feet of rein? A. No man can handle a mule of any size by a halter rein. If you are handling a mule you have got to halter him up close to you.”

The father-in-law said:

“It was his hind leg — got it in between the wheel and shaft. I said the front wheel. That is all I know about it. I didn’t see any misbehavior in the mule until we got right up to them. He shied at something. I don’t know what it was. There was-a lot of brick on the north side and some dirt thrown up there. If there were any red lights there they were not lit up, because it wasn’t dark enough. I quit work that day at six o’clock. I had not taken any whiskey. I don’t drink. We were sitting in the seat and he was sitting on our knees. This did not happen very suddenly. It didn’t take but a few minutes, but the mule got the best of us. It was somewhere about a minute in happening. I did not see any misbehavior in the man who was riding the other mule, only he couldn’t handle the mule, is all. He didn’t have them up so he could handle them. I am not very much of a mule-handler. He could have tied them up closer than he did. I don’t think he was tied up at all. I think he was leading the mule at the end of the rope.”

There is no evidence in the case to the effect that the mule in question was wild and unruly, or that defendant had any knowledge of the animal being unruly or wild, if it was so, in fact. Defendant said that the mule was well-broke, but a little high-lifed, and this is as far as the evidence in behalf of the defendant adds to plaintiff’s case. Defendant demurred to the evidence at the close of the plaintiff’s case and again at the close of the whole case. Plaintiff’s right to recover under the pleadings and under the evidence is thus squarely presented.

I. There are at least two reasons why this judgment should be reversed. It is true that in justices’ courts the same strict formalities of pleadings are not required as in the circuit court, but it is further true that, if the plaintiff elects to plead in strictness in such court, he is bound by his pleadings there as he would be elsewhere. By this we mean, if he is suing in tort, and specifically states the negligence upon which he relies to recover, he must recover for that negligence and none other. In the case at bar, what is the negligence upon which the plaintiff seeks to recover ? Is it the negligent handling of a mule, an ordinary average mule, or is it the negligent handling of a wild and unruly mule? And if the latter, has there been a case made? This is the first proposition in the case. We have set out in full the plaintiff’s statement of his cause of action. A reading of that statement shows that the plaintiff was undertaking to charge the careless and negligent handling of “a wild and unruly mule.” Counsel for plaintiff, who drew and signed the petition for plaintiff, recog-' nized that what would be a negligent handling of a wild and unruly mule might not be a negligent handling of an ordinary mule. He canvassed his facts and then charged that defendant was guilty of a negligent handling of “ a wild and unruly mule. ’ ’ This was the case defendant was called upon to meet. When, therefore, it was made to appear that the defendant had not handled “a wild and unruly mule” at all, the case stated had failed. Under the pleadings the defendant was not required to come prepared to meet the question of a negligent handling of an ordinary mule, but on the other hand the plaintiff if permitted to recover, must recover upon the case made by his pleadings. Under the case pleaded, his proof failed, and the court should have directed a verdict for the defendant.

II. But even grant it that the petition in this case is in such form and substance as to permit a recovery upon the proof of a negligent handling of a mule, without reference to the “wild and unruly” characteristic of the animal, as two of the judges of the Court of Appeals thought, yet should there have been a recovery under the evidence? We think not.

Plaintiff’s theory is that the leading of a mule, somewhat “high-lifed” or high spirited, upon a street, where a portion of the street was torn up by digging, and in which was piled bricks in a long continuous row or pile, by a halter, with a rope five feet long, was negligence. There is no question but that there was ample space in the obstructed street for the same passage of both the buggy and the mules. It is true that plaintiff’s witnesses say that the mules should have been haltered together or something of that kind. This is their expert view of the situation, but we hardly think that the question is one calling for opinion evidence, and although such was admitted without objection, the case here is not changed by reason of that fact. [St. Louis v. Roche, 128 Mo. 541; Boggs v. Laundry Co., 171 Mo. 282; Thompson on Trials, sec. 691.]

The use of a halter with a rein of five or six feet • for the leading of both horses and mules upon the public highway is one of such long standing that expert testimony has no place in such a case. Not'only so, but such a leading is not negligence, at least it is not negligence unless some vicious propensity of the animal be pleaded and shown. In this case we have no vicious propensity pleaded or proven. It is true that the petition charges that the mule was “wild and unruly” (not strictly a vicious propensity), but even that was not shown. Without some proof of vicious propensities, the trial court should have said that the mere proof that the defendant led the mule by a halter rein five or six feet long was no evidence of negligence upon his part. To hold that such conduct amounted to negligence is to overthrow all common knowledge as to the handling of animals upon the public highways. Courts must not blind themselves to common knowledge. The proof made in this case failed to show negligence in any degree, and the judgment from start to finish should have been for defendant. [Eddy v. Union R. Co., 56 Atl. 677.]

We regret to feel constrained to thus abruptly terminate “The Celebrated Mule Case,” but it should have been so determined long since. Let the judgment of the circuit court be simply reversed so that there will be an end to the controversy.

All concur; Lamm, J., in separate opinion.

CONCURRING OPINION.

LAMM, J.

It was Dr. Johnson (was it not?) who observed that Oliver Goldsmith had “contributed to the innocent gayety of mankind.” (Nota bene: If, as a pundit tells me, it was Garrick and not Goldsmith Johnson spoke of, and if in quoting I misquote, then, memory has played a trick upon me and a learned bar will correct me. Time and weightier matters press me to go on and leave the “quotation”(?) stand.) The function of this suit is somewhat the same. Beginning with the “J. P’s” it has reached the “P. J’s,” and its journey has run the gamut of three courts, one above the other. Now, secunckm regulam, it, a fuss over five dollars, has reached the highest court in the State for final disposition — all this because (1) of divergence of opinion among our learned brethren of the Springfield Court of Appeals, and (2) the provisions of the Constitution in that behalf made and provided. However, if the amount at stake is small, the value of the case for doctrine’s sake is great.

As I see it, the case is this: Dale, a man of substance, a farmer, owned a brown and a gray mule, both young and of fine growth; one saddlewise, the other otherwise. Both, used to the plow and wagon, were entitled to the designation “well-broke and gentle.” One Parker was Dale’s manservant and in the usual course of his employment had charge of these mules. On a day certain he had driven them to a water wagon in the humble office of supplying water to a clover-huller in the Ozark region hard' by its metropolis, to-wit, Springfield. Eventide had fallen, i. e., the poetical time of day had come when the beetle wheels his droning flight, drowsy tinkling lulls the distant folds and all the air a solemn stillness- holds. In other words, dropping into the vernacular, it was time to “take out.” Accordingly, Parker took out, with his mind fixed on the watch dog’s honest bark baying deep-mouthed welcome as he drew near home. He mounted the ridable mule. He says he tied the other to the hames of the harness on the ridden one hy a four-or-five-foot halter rope, and was plodding his weary way homeward a la the plowman in the Elegy. The vicissitudes of the journey in due course brought him to Walnut street in said city of Springfield. At a certain place in that street the city fathers had broken the pavement and made a “rick of brick” aside a long lióle or ditch. Hard by this rick of brick was a ridge of fresh earth capped by a display of red-lantern danger signals. It seems the unridden mule crowded against the ridden one and harassed Parker by coming in scraping contact with his circumjacent leg. Any boy who ever rode the lead horse in harrowing his father ’s field will' get the idea. In this pickle he took hold ol the halter rope, still fastened to the hames, to keep the unridden mule from rasping his said leg. It might as well be said at this point that witnesses for plaintiff did not observe that the end of the rope was attached to the hames of the ridden mule. As they saw it, Parker was leading the mule. As will be seen a bit further on, at this point a grave question arises, to-wit, is it negligence to lead a mule by hand or should he be fastened “neck and neck” to his fellow? But we anticipate.

Going back a little, it seems as follows: At about the time Parker had reached said part of Walnut street, plaintiff and two others were in a buggy pulled by a single horse and on their own way home to the country. So equipped, these several parties met face to face. At this point it will do to say that while the mules were used to being on the water wagon, it is not so clear that these travelers' three -were. There are signs of that artificial elation in the vehicle party that in the evening springs from drinking (“breathing freely”), but on the morning after produces the condition of involuntary expiation Dr. Yon Hiring calls “katzenjammer.” They disavow being half-seas-over or drunk. Their chief spokesman, as descriptive of the situation, in part told his story mathematically in this fashion: “I had not drank so much but what I kept count. I can keep count until I take three and hadn’t quit counting yet.” In the course of their journe3r they, too, came to- the brick rick, the ditch, the ridge of dirt and the red lights on Walnut street. There they met, as said, the gray and brown mule and Parker face to face. When mules and rider approached and passed the three travelers, all on the same side of the ditch, the led mule, whether scared by the hole in the ground, the rick of brick or the ridge, is dark, shied from his fellow (“spread” himself) and presently his hind leg was mixed up with the shafts and wheel of the buggy. When the status quo ante was re-established both leg and wheel were found damaged. Subsequently a blacksmith offered to repair the damages to the wheel for, say, a dollar and a half. This sum defendant,. though denying liability, was willing and offered to pay; but plaintiff’s dander was up and he as buggy-owner demanded a new wheel worth five dollars, and sued.

In the justice court, defendant lost outright and appealed. In the circuit court, the same. The learned judges of the Court of Appeals could not agree (the furor scribendi' being much in evidence and three learned opinions falling from their several pens) and sent the case here — and here it is.

My Brother Graves has well disposed of it on certain grounds, but, the theme being the Missouri mule and state pride calling for further exposition, the said furor scribendi has seized me — witness:

(a) It is argued that it was negligence to ride one mule and lead its fellow by hand. That they should be halter-yoked “neck and neck.” Parker says he necked them in a way, but plaintiff takes issue on the fact. Allowing credit to plaintiff’s evidence, two questions spring, vis.: First, is the neck-and-neck theory “mule law” in this jurisdiction? Second, if so, then was the absence of the neck-and-neck adjustment the proximate cause of the injury? We may let the first question be settled in some other mule case and pass to the second as more important. It will be observed that the neck and forequarters of the mule did not do the damage. Contra, the bind quarters or “business end” of tbe mule were in fault. We take judicial notice of facts of nature. Hence, we know tbat haltering a mule neck- and-neck to another will not prevent bis bind parts spreading. His neck might .be on one line, but bis bind legs and heels might be on another, a divergent one. True tbe mental concept relating to shying or spreading would naturally originate in tbe mule’s bead. But it must be allowed as a sound psychological proposition tbat haltering bis bead or neck can in nowise control tbe mule’s thoughts or control tbe binder parts affected by those thoughts. So much, I think, is clear and is due to be said of tbe Missouri mule, whose bones, in attestation of bis activity and worth, lie bleaching from Shiloh to Spion Kop, from San Juan to Przemysl (pronounced, I am told by a scholar, as it is spelled). It results tbat causal connection between tbe negligence in band and tbe injury is broken and recovery cannot go on the neck-and-neck theory. This because it is plain under- tbe distances disclosed by tbe evidence tbat tbe mule’s bind legs could reach tbe buggy wheel in spite of a neck-and-neck attachment.

(b) Tbe next question is a bit elusive, but seems lodged in tbe case. It runs thus: There being no evidence tending to show tbe mule was “wild and unruly” as charged, is such a mule per se a nuisance, a vicious animal, has be a heart devoid of social duty and fatally bent on mischief when led by a baiter on tbe street of a town, and must bis owner answer for bis acts on tbat theory?

Attend to tbat view of it:

(1) There are sporadic instances of mules behaving badly. Tbat one tbat Absalom rode and “went from under” him at a crisis in bis fate, for instance. So it has been intimated in fireside precepts tbat the mule is unexpected in bis heel action, and has other faults. In Spanish folk lore it is said: He who wants a mule without fault must walk. So, at tbe French chimney-corner the adage runs: The mule long keeps a kick in reserve for his master. “The mule don’t kick according to no rule,” saith the American negro. His voice has heen a matter of derision and there be those who put their tongue in their cheek when speaking of it. Witness the German proverb: Mules make a great fuss about their ancestors having been asses. And so on, and so on. But none of these things are factors in the instant case; for here there was no kicking and no braying standing in the relation of causa causans to the injury to the wheel.

Moreover, the rule of logic is that induction which proceeds by merely citing instances is a childish affair and, being without any certain principle of' inference, it may be overthrown by contrary instances. Accordingly the faithfulness, the dependableness, the surefootedness, the endurance, the strength and the good sense of the mule, all matters of common knowledge, may be allowed to stand over against his faults and create either an equilibrium or a preponderance, in the scales in his favor. He, then, as a domestic animal is entitled to the doctrine that if he become vicious, guilty knowledge (the scienter) must be brought home to his master, precisely as it must be on the dog or ox. The rule of the master’s liability for acts of the ox is old. [Ex. 21:29.] That for the acts of the dog is put this way: The law allows the dog his first bite. Lord Cock-bum’s dictum covers the master’s liability on a kindred phase of liability for sheep-killing, to-wit: Every dog is entitled to at least one worry. So with this mule. Absent proof of the bad habit of “spreading” when led and the scienter, liability did not spring from the mere fact his hind leg (he being scared) got over the wheel while he was led by a five-foot halter rope; for it must be held that a led mule is not a nuisance per se, unless he is to be condemned on that score out-and-out because of his ancestry and some law of heredity, some asinine rule, so to speak, a question we take next.

(2) Some care should be taken not to allow such scornful remarks as that “the mule has no pride of ancestry or hope of posterity” to press upon our judgment. He inherits his father’s ears, but what of that? The ass’s ears, presented by an angry Apollo, were an affliction to King Midas, but not to the mule. He is a hybrid, but that was man’s invention centuries gone in some province of Asia Minor, and the fact is not chargeable to the mule. So, the slowness of the domestic ass does not descend as a trait to the Missouri mule. It is said that a thistle is a fat salad for an ass’s mouth. Maybe it is also in a mule’s, but be it so, surely his penchant for homely fare cannot so far condemn him that he does not stand rectus in curia. Moreover, if his sire stands in satire as an emblem of sleepy stupidity, yet that avails naught; for the authorities (on which I cannot put my finger at this moment) agree that the Missouri mule takes after his dam and not his sire in that regard. All asses are not four-footed, the adage saith, and yet to call a man an “ass” is quite a different thing than to call him “mulish” (vide, the lexicographers).

Furthermore, the very word jack-ass is a term of reproach everywhere, as in the literature of the law. Do we not all know that a certain phase of the law of negligence, the humanitarian rule, first announced, it has been said, in a donkey case (Davies v. Mann, 10 Mees. & Weis. 545) has been called, by those who deride it, the “jack-ass doctrine?” This on the doctrine of the adage: Call a dog a bad name and then hang him. But, on the other hand, to sum up fairly, it was an ass that saw the heavenly vision, even Balaam, the seer, could not see and first raised a voice against cruelty to animals. [Num. 22:23 et seq.] So, did not Sancho Panza by meditation gather the sparks of wisdom while ambling along on the back of one, that radiated in his wonderful judgments pronounced in his decision by the common-sense rule of knotty cases in file Island of Barataría? Did not Samson use the jawbone of one effectually on a thousand Philistines Í Is not his name imperishably preserved in that of the fifth proposition of the first book of Euclid — the pons asinorum? But we shall pursue the subject no farther. Enough has been said to show that the ass is not without some rights in the courts even on sentimental grounds; ergo, if his hybrid son, tracing his lineage as he does to the Jacks of Kentucky and Andalusia, inherits some of his traits he cannot be held bad per se. Q. E. D.

It is meet that a five-dollar case, having its tap root in anger (and possibly in liquor), should not drag its slow lengths through the courts for more than five years, even if it had earned the sobriequet of “the celebrated mule case.”

The premises herein and in the opinion of Brother Graves all in mind, I concur.


text:
    CITY OF CARUTHERSVILLE, Appellant, v. J. D. HUFFMAN and SARAH HUFFMAN.
    Division One,
    December 2, 1914.
    1. BILL OF EXCEPTIONS: Record Proper: Not Commingled. Where the abstract bears after the pleadings the statement that “the following entries and matters appear of record proper,” followed by orders of court, including those relating to the bill of exceptions, and then by a heading, “Bill of Exceptions,” in large, black-faced capitals, preceding such matter as is usually preserved in that form, it will not be held that matter of exceptions and of record proper have been commingled.
    2. LIMITATIONS: Streets. Sec. 1886, B. S. 1909, providing that “nothing contained in any statute of limitation shall extend to any lands given, granted, sequestered or appropriated to any public . . . use,” applies not simply to lands acquired by the public in fee, but to lands dedicated to a city for streets and alleys.

      3. PLAT: Outlines: Construction. In construing plats dedicating property, the courts will give effect to the plain meaning and intent exhibited by their outlines as well as by their words.
    4. -: Conveyance By Reference: Dedication. Those to whom property is conveyed by reference to a plat which attempted to dedicate streets and alleys to the public, adopt the dedication by accepting the conveyance.
    5. -: Defective: Dedication of Streets and Alleys: Accepted by City: Adverse Possession of Alley. Where the dedication of streets and alleys to the public by a plat of city property was defective, in that there was no showing of a submission of the plat to the city council, the city by opening and improving streets indicated thereon accepted the dedication in full, and a property owner in the addition cannot acguire title to an abutting alley by adverse possession.
    Appeal from Pemiscot Circuit Court — No». Henry G. Riley, Judge.
    Reversed and remanded.

      Vance J. Higgs and Everett Reeves for appellant.
    (1) The dedication was in substantial compliance with the statute and is a good statutory dedication. Buschmann v. St. Louis, 121 Mo. 523; Price v. Breckenridge, 77 Mo. 447; Reid v. Board, 73 Mo. 295; Otter-ville v. Bente, 240 Mo. 291. (2) (a) But if we concede that the plat was insufficient as a statutory dedication, it was good as a common-law dedication when accepted by the city by opening and improving the streets as platted. Rose v. St. Charles, 49 Mo. 509; Heitz v. St. Louis, 110 Mo. 618; Naylor v. Harrisonville, 207 Mo. 341; Ragan v. McCoy, 29 Mo. 356; Hannibal v. Draper, 15 Mo. 635; Rector v. Hartt, 8 Mo. 448; Otterville v. Bente, 240 Mo. 291. (b) The law is that the city by accepting, improving and using a street or streets or an alley or alleys as platted must be regarded as accepting the whole tract as platted, and not merely such portion as the city chose to open and improve. Heitz v. St. Louis, 110 Mo. 618; Otterville v. Bente, 240 Mo. 291. (3) The appellees are forever estopped and precluded from denying the sufficiency of the dedication in this case, because they purchased from the original dedicators said lots 5 and 6, abutting on the alley in controversy, and accepted a warranty deed therefor which particularly described the property as platted and dedicated. Dillon on Municipal Corporations says (sec. 1083): “While a mere survéy of land, by the owner into lots, defining streets, squares, etc., will not, without a sale, amount to a dedication, yet a sale of lots with reference to such plat, or describing lots as bounded by streets, will, as between the grantor and grantee, amount to an immediate and irrevocable dedication of the streets, binding upon both vendor and vendee.” In section 1084 the author says: “It has been held that when the owner of lands sells lots according to a plat or plan showing streets, alleys and other public ways thereon, the right which passes to the purchaser in the streets, shown on the plan is not the mere right that he may use the streets, but that all persons may use them.” (4) (a)-The Statute of Limitations does not run against the city in this case. R. S'. 1909, sec. 1886; California v. Bright, 179 Mo. 441; St. Louis v. Railroad, 114 Mo. 13; Otterville v. Bente, 240 Mo. 291. (b) Ejectment may be maintained by the city to recover public streets or alleys. California v. Howard, 78 Mo. 88; Elevator Co. v. Railroad, 135 Mo. 353.

      Arthur L. Oliver for respondents.
    (1) Appellant’s appeal in this case should be dismissed for the reason that it fails, to comply with the rules of this court. No sufficient abstract of the record has been filed herein. While it is true the so-called abstract shows that a bill of exceptions was tendered and filed, there is nothing to show where the record proper ends or the so-called bill of exceptions begins. Reno v. Fitz Jarrel, 163 Mo. 413. (2) A common-law dedication is an implied dedication arising and operating by way of estoppel, and the public acquires merely the easement or right to use the land, while the fee remains in the owner. To constitute a common-law dedication there must be an acceptance on the part of the public by continuous, notorious and adverse use, or other similar acts under a claim of right in the public. Such were not the conditions here. The plaintiff, about the time that defendants fenced up the land in dispute, began to use and improve some of the streets mentioned in the plat. For thirteen long years its officers saw defendants peaceably and continuously in possession of this ground, erecting lasting and valuable improvements thereon and did nothing. Holding, at least, an easement in this strip of ground and not the fee, the city is now barred by the Statute of Limitations from maintaining this action. St. Charles County v. Powell, 22 Mo. 25; Banson v. Madison Co., 204 Mo. 98¡'Mississippi County v. Vowels, 101 Mo. 228; Callaway County v. Nolley, 31 Mo. 398; Chicago v. Middlebrook, 143 111. 265; Sims v. Frankfort, 79 Ind. 446; Reed v. Bingham, 92 Ala. 339; Driggs v. Phillips, 103 N. T. 77; Tates v. Warrenton, 84 Va. 337. (3) Appellant contends that Sec. 1886, R.' S. 1909, exempts appellant from the ten-year Statute of Limitations. But the strip in question was never “given, granted, sequestered, or appropriated” to any public use, and therefore the above statute does not apply. At best, the entire “Ward Addition” only became a part of the city by a common-law dedication whereby the right of use was acquired by the city, while the fee remained in Wm. A. Ward, and his two sisters. Certainly they are barred by defendants’ possession of more than thirteen years. Then what superior rights has the appellant, who never accepted the attempted dedication; who never exercised the right of user over the strip in dispute at auy time, nor over any part of the addition for more than ten years before defendants’ possession began?
   BROWN, C.

Ejectment to recover a.tract of land in the city of Caruthersville in said county, twenty feet wide and one hundred feet long, on the ground that it is dedicated to public use as an alley. A jury was waived.

There was no substantial dispute as to the facts. While it is not clearly shown in the evidence it seems to be assumed in argument that on March 22, 1895, the land included'in “Ward’s First Addition of Ca-' ruthersville ” was within the city limits. On that day the plat was filed, consisting of two tiers of blocks extending in a northerly and southerly direction, five blocks in each tier. On the east side was a street named Carleton avenue; between the two tiers of blocks was Highland avenue, and on the west, Cotton avenue. From north to south the cross streets were named George, Neptune, Jupiter, Mars, Mercury, and an unnamed street along the south end. Block five occupies the southeast corner of the plat, with its two tiers of lots, each lot having fifty feet frontage and a depth of 140 feet. Lots one to six inclusive, numbered from north to south, fronted on Carleton avenue, while lots seven to twelve inclusive, numbered from south to north, fronted on Highland avenue. The alley in question extends through the middle of the block from Mercury street on the north to the unnamed street on the south, in the rear of the lots, and is twenty feet wide. A similar alley extends through each block except the north pair, the north six lots of which front north on George street with an alley extending east and west in their rear. All the other blocks are identical.

On the date mentioned William A. Ward and his three sisters, with the husbands of two of them who were married women, filed the plat above described in

the recorder’s office, duly signed and acknowledged, with the following certificate: “We the undersigned hereby declare the above to be a true and correct plat of Ward’s First Addition to Caruthersville, Mo., and forever dedicate to the public the streets therein named. ’ ’ The approval of the common council was not indorsed on the plat, nor was there any evidence of such approval by ordinance. On March 15, 1896, they conveyed lots five, six, and seven, of block five, to the defendant Sarah E. Huffman, wife of her co-defendant, by that description. In September following they built a residence on lots five and six, fronting on Carleton avenue, and fenced the three lots, including in the enclosure the land in controversy, being the entire 100 feet of the alley lying in the rear of the two lots on which they built. This enclosure remained up to the time of the trial. Building proceeded in the addition so that when this suit was tried in 1909 it was “thickly settled.” The unnamed street south of defendants’ premises was opened and traveled in 1897. All the other streets on the plat were opened and improved, by paved or plank sidewalks on each side and by grading, and telephone and electric light poles had been maintained on all of them for a number of years. Carleton avenue had been opened and traveled at the time defendants built their enclosure. The north 200 feet of the alley in question in block five has been open and used several years. At the trial Mr. Huffman was sworn as a witness for the plaintiff and stated on oath that the defendants had no other paper title to the premises than the deed above mentioned, and that he claimed title to the land in controversy by adverse possession for more than thirteen years. The judgment was for the defendants.

I. The preliminary point is made by the respondent that, the appeal should be dismissed for the reason that “no sufficient abstract of the record has been filed.” The only specification is that “there is nothing to show where the record proper ends and the bill of exceptions begins.”

Examining the abstract we find at the end of the pleadings the statement: “The following entries and matters appear of record proper.” Then follows a statement of orders of the'court up to and including an order granting time to file bill of exceptions, and an order in term filing the bill within the time so granted. Then follows a big black faced capital line, as follows, “BILL OP EXCEPTIONS,” followed by such matter as is usually preserved in that form, and finally by the usual and time honored attestation and signature of the judge with his official title. Having no difficulty in locating the dividing line between these two important portions of the record, we feel at liberty to proceed to the real question upon which the parties seem to have differed at the trial.

II. This question is, in general terms, whether this land has been given, granted, sequestered or appropriated to public use within the mean-mg’ of that expression as used m section 1886, Revised Statutes 1909, which provides that “nothing contained in any Statute of Limitations shall extend to any lands given, granted, sequestered or appropriated to any public . . . use, ’ ’ so as to give the plaintiff city a possessory title which it may enforce in ejectment, and to prevent the acquisition of that title by the defendants by adverse possession, under the circumstances conclusively shown in this record.

It is intimated by the defendants in their brief that this provision applies only to lands acquired by the public in fee, although they do not attempt to support that position otherwise than by naked assertion, and we can see no reason upon which such a distinction can stand. The city is given “exclusive control over all streets, alleys, avenues, and public highways within the limits of such city” (R. S. 1909, sec. 9400), and it is plain that it cannot exercise this control without possession whether the title be an easement or a fee. The action of ejectment is a purely possessory one and it lies wherever the right to the possession of lands exists, and possession is withheld. So with the provision of section 1886 of the same revision exempting lands appropriated to public use from the' operation of the statutes of limitation. Its words, as well as its reasons for being, apply equally to all interests "in land appropriated to public use susceptible of adverse possession. The question is, has this land been dedicated to'the public as a street or alley? If so it is immaterial whether such dedication be of the nominal fee or a simple easement.

In construing plats of this character we must give effect to the plain meaning and intent they exhibit by their outlines as well as by their words, [Brown v. Carthage, 128 Mo. 13, 23; Buschmann v. St. Louis, 121 Mo. 523, 536.] This plat expressed in its outlines more certainly than it could have expressed in words, what portions were to be sold or used as lots and what portions were intended as streets and alleys to serve them. It conformed exactly to the provisions of the statute in those respects, but did not conform to the provision requiring it to be submitted to the common council of the city, and its approval by ordinance to be indorsed on it before recording’; and in this respect it did not constitute such a dedication of the streets and alleys which were shown on it as was required by the statute, and which carries with it the acceptance of the city.

After the filing of the plat the owners sold the three lots at the south en3 of block five to the defendant Mrs. Huffman, conveying them by a deed which described them only by numbers which they bore on the plat, and which could not operate without the as-

sistance of the latter to identify the description. The streets and alleys shown on the plat were thus appropriated to the public uses thereon indicated so far as it could be done by a common-law dedication in which the defendants, or at least the wife, joined with the original owners. “When an incomplete or defective statutory dedication is accepted by the public, or when rights are acquired under such dedication by third persons, such acquisitions will operate in favor of the public and of such acquirers respectively,” and “the sale' and conveyance of the lots in the town according- to its plan carry with them a grant or covenant that the streets indicated on the plan shall be forever open to the use of the public.” Heitz v. St. Louis, 110 Mo. 618, 624; Buschmann v. St. Louis, 121 Mo. 523, 536.]

The city accepted the dedication by opening to public travel Carleton avenue, on which the defendants’ lots fronted one hundred feet, and the unnamed street on the south, upon which they abutted two hundred and eighty feet, and has continued ever since to improve and maintain them. The defendants showed their appreciation of this by fencing up the alley, for which they apparently had no use, and to which they neither had nor claimed any title other than that which inheres in the abutting proprietor, for the purpose as they now say, of acquiring title to it by adverse possession. In this the law affords them no assistance. When the defendants received the deed to their lots as described in the plat, they approved and adopted it; when the city adopted it and opened and improved the streets upon which the lots abutted, it accepted the dedication of the alley as well (Heitz v. St. Louis, supra, l. c. 625); and thereafter, whether fenced or nnfenced, it was held subject to the right of the city to take it at any time it should see fit to exercise its statutory dominion over it. [Robinson v. Korns, 250 Mo. 663, 673; Otterville v. Bente, 240 Mo. 291.]

The judgment of the circuit court is reversed and the cause remanded for further proceedings.

Blair, G., concurs.

PER CURIAM.

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

All the judges concur.